Conference Proceedings Crime, Justice and Social Democracy: An International Conference

ISBN: 978-0-9871533-2-6 Copyright: Authors Email address for correspondence: juan.tauri@qut.edu.au

Key Words Courts, eco-justice, environmental crimes, global justice, governance and ethics, human rights, Indigenous justice, penal policy, policing, sex and gender, social justice

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Introduction With great pride and pleasure, I introduce to you this volume of refereed papers presented at the Crime, Justice & Social Democracy International Conference, held at Queensland University Technology, 26-28 September 2011.

Concerns about the politics of crime control underscored the idea for this interdisciplinary international conference. Critical scholars in the social sciences from a range of disciplines sociology, law, criminology, politics and history - have long been attuned to the dangers that lurk within the power to criminalise and responses to crime control shaped by punitive populism. Criminal justice and penal systems have increased dramatically in size, reach and punitiveness over the past two decades, a period dominated by neo-liberalism and retrenchment of social welfare across the UK, US, parts of Europe and Australia.

The distinctive aim of this conference was to reinvigorate the intellectual and policy debates about the link between social justice, social democracy and the reduction of harm, crime and victimisation through the alleviation of inequalities and building of more socially just and inclusive societies. The papers presented at the conference, 22 of which are published in these proceedings, offer a timely reflection on the neo-liberal epoch of crime control, particularly in light of the growing demand for social democracy sweeping parts of the globe, the impact of the global financial crisis and the surprising return to more democratic penal policies in parts of the globe.

The conference was divided into the eight themes described below. The refereed papers are organised in these proceedings according to the theme under which they were presented.

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Global Justice, Transborder Crimes and Human Rights Widespread human rights abuses, transnational crime and violent conflict present significant challenges for domestic governments and international organisations. Responses have traditionally focused on the threat posed to national security and regional stability, often overlooking inherent social and political injustices. Papers presented in this theme explored emerging human rights and human security conceptualisations of global justice.

Policing, Investigation and Intelligence in Social Democracies Confidence in the integrity, independence and professionalism of criminal justice and investigative agencies is an essential feature of the modern social democratic state. With the rising threat of terrorism, despotism, the decline of social democracy in parts of the world, and the elevation of national security concerns growing tensions between the protection of human rights and the national security of the population have plagued the contemporary climate of policy-making in law enforcement. Papers presented under this theme explore how social democratic countries might best address these problems.

Penal Policy and Punishment in the Global Era Prisons and punishment, the way we respond to crime and incidents of social harm, the effectiveness (or otherwise) of penal policy and correctional interventions; all are issues of concern to academics, policy makers and citizens in all contemporary social democracies. Papers in this part present and discuss the wide range of issues pertinent to these issues. They consider broader questions about the role of penal policy within social democratic narratives, and examine the operation and role of the criminal justice system in social democracies. They explore the continued use of prisons as a primary 'site of punishment', the globalisation of crime control and penal policy, including the privatisation of penal processes, recent trends in alternatives to imprisonment and contemporary theorising on punishment.
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Indigenous Justice Since the early 1980s, the over-representation of Indigenous peoples in the criminal justice system has been a major issue in the 'big four' neo-colonial jurisdictions of Canada, Australia, New Zealand and the US. Papers presented in this theme of the conference focused on a range of issues important to the Indigenous perspective, including the role played by the discipline of criminology in the development of neo-colonial crime control policy, the contemporary focus on culture as a response to Indigenous critique of the formal justice systems engagement with First Nations, and the gendered nature of the Indigenous experience of crime control policy.

Eco-Justice and Environmental Crimes Challenges arising from human impact on the environment are among the greatest of our generation, and the links between that human impact (climate change, oil spills, waste, deforestation) and human rights are evident. From threats to livelihoods to rising sea levels, species loss, mass migration to reduced food supplies, environmental change and the impact of our exploitation of natural resources threatens the enjoyment of human rights by individuals and communities. Drawing upon a human rights and eco-criminological framework, papers in this part examined the causes and impact of, as well as approaching and managing, environmental changes and challenges. In particular, chapters in this section will consider the often hidden or unexpected harms of the exploitation of natural resources on individuals and communities.

Sex, Gender and Justice One of the most prominent and enduring patterns in the criminal justice system relates to sex and gender. Maleness has been one of the strongest predictors of criminality - however the gender gap has been narrowing in social democratic countries over the last 50 years as female
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crimes rates (especially among young women) increase. Same sex violence, sexual violence and crimes related to homophobia represent a continuing albeit much neglected concern. Papers presented under this section of the conference explored the large scale shifts in sex, sexuality and gender often over-looked or marginalised in the criminal justice policy, practice and scholarship.

Social Justice, Governance and Ethics Drawing on social democratic narratives, papers in this section consider what our society could become (through ideas of sustainability and social democracy), and what our society currently is. They explore the current links between social exclusion and criminal justice, the impact of 'social inclusion' policies on attempts to govern crime and deviance within the justice system and beyond. Questions about social justice, governance and ethical practice are inextricably linked to crime control and criminal justice practice. The clearest manifestation of this link is the over-representation of socially marginal populations within the criminal justice system.

Courts, Law & Social Justice Courts, tribunals and other juristic institutions are inevitably shaped and influenced by social, political and economic factors and ideologies. The tension between neo-liberal and social democratic values is therefore manifest in the structure and operation of the courts, and reflected in a diversity of legal developments and innovations. Some legal innovations, such as the rise of the problem solving courts and attempts to increase public participation in law and policy formation, hint at greater democratisation and greater social capital. But other trends, such as high levels of public punitiveness and the denial of substantive access to justice for some groups and individuals reflects a regression to a self-focused, less inclusive

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liberal worldview. Papers presented in this theme explored the relationship between our evolving juristic institutions and changing social, political and cultural worldviews. I would like to acknowledge the editorial assistance of Justine Hotten. Finally I would also like to thank the panel of internationally distinguished scholars who participated in the Review Panel. Professor Kerry Carrington, Head of School, School of Justice, Faculty of Law, QUT.

Review Panel Professor Larrisa Berhendt, UTS Professor Judith Bessant, RMIT Professor David Brown, UNSW Professor Simon Bronitt, Griffith University Professor Walter DeKeserdy, University of Ontario Institute of Technology Assistant Professor Molly Dragiewicz, University of Ontario Institute of Technology Professor Pat Carlen, University of Kent Professor Elliot Currie, University of California Associate Professor Russell Hogg, UNE Professor Susan Karstedt, University of Leeds Professor Jo Phoenix, University of Durham Professor Scott Poynting, Manchester Metropolitan University Professor John Pratt, Victoria University of Wellington Professor Phil Stenning, Griffith University Professor Reece Walters, QUT Dr Leanne Weber, Monash University

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Table of Contents
Introduction
Kerry Carrington

iii Global Justice, Transborder Crimes and Human Rights

Misuse of Diplomatic Passports

Antje Deckert

11 27 43

How do Human Rights Prosecutions Improve Human Rights after Transition?

Hun Joon Kim

Vulnerable and Invisible: Depictions of Trafficking Victims in Public Awareness campaigns

Erin OBrien and Sarida McLeod

Society is Entitled to But One Satisfaction: Ne bis in idem and Jurisdiction Questions in the Gabe Watson Case
Melanie OBrien

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Policing, Investigation and Intelligence in Social Democracies Educating Police Recruits for Democratic Policing
Christine Jennett, Mir Rabiul Islam, David Bull and Rosemary Woolston

80 100 118 133

Image Work(s): Simulating Policing and the New Police (Popularity) Culture
Murray Lee and Alyce McGovern

Policing Unlawful Squatting: The Case of South Africa

Angel Mabudusha

Developments in Gang Policy and Policing in the UK: Who are labelled and why does it matter
Rob Ralphs, Hannah Smithson and Patrick Williams

Vietnamese Communities, Crime Prevention and Drug Trafficking in Victoria

James Scambury and Prof Denise Meredyth

157 172

The Penumbra of the Policing Mandate: The Case of the South African Police Service
Rika Snyman

Penal Policy and Punishment in a Global Era Public Attitudes to Punishment and the Democratisation of Sentencing Policy
Dr David Indermaur

191 211 228

Principles Relevant to the Sentencing of Individuals for Terrorism Offences

Nicola McGarrity

Explaining Prison Populations: A Review of International Evidence

Hilde Tubex

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Indigenous Justice Indigeneity and Non-Custodial Orders: Comparing Different Sentencing Outcomes in Queenslands Higher Courts
Christine E W Bond and Samantha Jeffries

249

Eco-Justice and Environmental Crime Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law
Bridget Lewis

265

Sex, Gender and Justice Understanding Woman Abuse in Canada: Past, Present and Future
Walter S DeKeseredy

280 299 319

Tactics of Antifeminist Backlash against the U.S. Battered Womens Movement

Dr Molly Dragiewicz

Just stupid drama queens: How Police Constrain, Regulate, and Punish the Visibilities of Sexual/Gender Diversity as Out of Place
Angela Dwyer

Invalidation and Gendered Violence across the Lifespan

Michael Salter

337

Social Justice, Governance and Ethics Social Justice Impacts of the Resource Boom
Kerry Carrington and Margaret Pereira

357 371

Inside the Preventive State

Tamara Tulich

Courts, Law and Social Democracy Courts and Social Change: Women in the Australian Judiciary
Sharyn Roach Anleu and Kathy Mack

389

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Global Justice, Transborder Crimes and Human Rights

Misuse of Diplomatic Passports Antje Deckert AUT University, Auckland, New Zealand

Conference sub-theme: Global Justice, Transborder Crimes and Human Rights

Abstract A number of internet consultancies advertise their highly-priced intermediary services for obtaining a genuine diplomatic passport. Clients are promised increased status, tax relief, and diplomatic immunity. Under the Vienna Convention on Diplomatic Relations 1961, diplomatic immunity meaning exemption from lawsuits and prosecution shall be granted to accredited diplomats only; however several real-life examples prove that genuine diplomatic passports can be obtained from a number of African and Pacific countries and are being used to claim diplomatic immunity even though passport holders have not been officially accredited as diplomats in a host country. This paper firstly describes how a genuine diplomatic passport is obtained, despite the passport holders lack of accreditation. Secondly, it analyses the evidentiary value such a passport holds under international diplomatic law, especially in regards to proving the passport holders right to claim diplomatic immunity. It explores how Article 40 of the Vienna Convention on Diplomatic Relations 1961 enables fake diplomats to successfully claim diplomatic immunity, and whether the misuse of genuine diplomatic passports constitutes a new form of white-collar crime.

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Background The wider public generally considers diplomats to be members of an exclusive, prestigious and somewhat mysterious circle (Burton, 1968); "a caricature of pinstriped men gliding their way around a never-ending global cocktail party" (Gyngell & Wesley, 2003). Indeed, a privileged status is afforded to diplomats through international law, which provides them with extensive benefits and immunities not granted to ordinary citizens. These privileges enable diplomats to safely execute their occupational tasks, e.g. facilitating, maintaining and intensifying communication and co-operation between their sending state and the host state (Bolewski, 2004).

Diplomacy (including diplomatic immunity) is a long-standing tradition. The first envoys were exchanged between Greek city states in the 5th Century BC. At first, diplomatic relations were established through bilateral and multilateral agreements, whose regulations developed into international customary law over time (Bolewski, 2007). The privileged status of diplomats was eventually captured in The Vienna Convention on Diplomatic Relations 1961 (VCDR), which has been signed by over 150 states (Denza 1998; Wagner et al., 2007) and is considered customary international law (Bolewski, 2004; Brown, 1988; ICJ Reports, 1980). The VCDR declares that states take up diplomatic relations by mutual consent, and generally thereafter establish permanent diplomatic missions. Before appointing the head of a mission, the sending state must make certain that the receiving state has given its agrment for the person whom the sending state proposes to accredit (Article 4 VCDR). An agrment is the formal consent of the receiving state for the appointment of an individual as head of a diplomatic mission (Denza, 1998; Wagner et al., 2007). Other members of diplomatic staff may be freely appointed by the sending state. However the sending state must notify the receiving state of staff appointments, arrivals, and final departures (Article 7 VCDR). This

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notification system enables the host state to identify diplomatic agents (Brown, 1988). Only diplomats, whose appointment has been duly accredited or notified, enjoy the privileges and immunities specified in the VCDR (Denza, 1998; Wagner et al., 2007).

Diplomatic immunity, as outlined in Article 31 VCDR, guarantees diplomats safe passage, ensuring intra-governmental communication even during periods of conflict (Bolewski, 2004; Denza, 1998; Wagner et al., 2007). Protection is provided by the receiving state. Diplomats are not subject to its jurisdiction; in other words, they are not susceptible to lawsuits, arrest, search, detention, prosecution, or subpoena as witnesses (Bolewski, 2004; Petrocelli, 2005). Diplomats usually claim diplomatic immunity by presenting a diplomatic passport or diplomatic ID card to the law enforcement agencies of the host state. Diplomatic passports are issued by the sending state. Diplomatic ID cards are issued by most receiving states through their ministry of foreign affairs (Brown, 1988; Deckert, 2009).

The Master Plan Because diplomatic privileges and immunities provide many advantages, diplomatic passports are desirable objects for individuals who do not belong to the diplomatic corps. Responding to demand, a number of internet consultancies (for example

www.ptshamrock.com; www.ptclub.com; and www.freebooter.com) promote themselves as intermediary service providers who can obtain genuine diplomatic passports from foreign jurisdictions. Consultancy fees range from 25,000 to 125,000 Euro. Clients are promised not only increased societal status and tax relief, but also diplomatic immunity (Deckert, 2009). One may suspect these offers of being nothing more than internet scams, and expect that advertisers would not deliver what they promise after receiving the initial non-refundable referral fee of around 5,000 Euro. However, further indicators suggest that they might not be

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acting in bad faith. At least two publications (Cotter, 1998; Von Braunfels, 2003) explain how a genuine diplomatic passport can be obtained without using expensive consultancy services. Furthermore, several real-life examples of fake diplomats claiming diplomatic immunity using a genuine diplomatic passport are known through court cases and the media. Brown (1988) describes the example of Meier, born in Canada and a former US citizen, who presented a Tongan diplomatic passport including a diplomatic visa issued by the Australian High Commission in Fiji when he was arrested in Australia. He claimed to be on a diplomatic mission, preparing for the Tongan Kings visit to countries throughout Asia and the Pacific. The magistrate wrongly ruled that Meier was to be granted diplomatic immunity. The King of Tonga himself recalled the passport after being interviewed about the incident.

The two known publications that explain how a genuine diplomatic passport can be directly obtained from a foreign country are Der Vertrauliche Diplomatenreport (The Confidential Diplomatic Report) by Charles Cotter and Gentlemens Digest by York von Braunfels (both only available in German). Identical wordings and misspellings in both publications suggest that the author is one person, using different pseudonyms. Reading like a master plan, the author first describes how diplomatic status and privileges are officially achieved, referring to the VCDR. Then, Cotter proposes two ways to obtain diplomatic status without resorting to a dismal office job at the embassy (1998): by either employing a consultant, or obtaining a diplomatic passport directly from government agencies in another country. The latter strategy is subsequently described in detail. The prospective passport holder is advised to contact representatives of a (preferably poor) state, offering financial or material assistance to support government programmes. During negotiations, he or she is advised to stress that aid may be provided faster and more easily if the benefactor was issued a diplomatic passport. He or she shall argue that such a document would allow the benefactor to travel freely and accomplish

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their mission more efficiently. If the head of state or the ministry of foreign affairs (depending on domestic laws) is successfully convinced, they will issue the benefactor with a genuine diplomatic passport. However, the passport holder will not be deployed to an embassy, meaning that no receiving state will be notified of his or her appointment. Regardless, the master plan assures readers that they will be granted diplomatic immunity when presenting the passport to law enforcement agencies in their own or another country. It is claimed that the passport holder will be able to avoid arrest, speeding fines, house searches, and drink driving charges (Von Braunfels, 2003; Cotter, 1998).

Although it cannot be specified how prevalent this practice is, it is certainly not just another manifestation of the widespread use of fraudulent (non-diplomatic) passports in the context of irregular migration. This is an entirely different phenomenon as diplomatic passports are knowingly issued to business people by governments that should reasonably expect that passport holders engage in shady business dealings or forms of organised crime.

This raises questions: Does a genuine diplomatic passport by itself provide sufficient proof for claims of diplomatic immunity? Do law enforcement agencies grant diplomatic immunity based on a diplomatic passport alone? (The example by Brown cited above indicates that this might well be the case.) Does this behaviour constitute a white-collar crime?

Cogency of Proof: Diplomatic Passport and Diplomatic Immunity Common legal principle suggests that the burden of proof rests with the individual claiming diplomatic immunity, because immunity provides the individual with advantages (Deckert, 2009). Since the VCDR does not specify how diplomatic staff should prove their rights to diplomatic immunity, regulations on the cogency of proof provided by a diplomatic passport

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vary from country to country (Wagner et al., 2007). In many Western jurisdictions, only diplomatic ID cards issued by the receiving state are determinative of immunity status. A diplomatic passport only proves that the issuing state wishes the passport holder to fulfil a diplomatic function (Deckert, 2009). Hence, diplomatic passports are often considered only indicative to the passport holders exceptional position (Brown, 1998; Deckert, 2009; Rudd, 2008). For example, in the United States, law enforcement agencies may only grant immunity when a diplomatic ID card issued by the Department of State is provided. Other documents, including diplomatic passports, are deemed inconclusive. In cases where a diplomatic ID card cannot be presented and immediate confirmation of an individuals status is required, law enforcement officers are expected to verify immunity status by contacting the U.S. State Department on a 24-hour hotline (U.S. Department of State, 2010).

However, the practice of entirely disregarding diplomatic passports as evidence for diplomatic immunity ignores a number of valid situations; for example, when diplomats have recently joined a diplomatic mission and have not yet received a diplomatic ID card (U.S. Department of State, 2010; Deckert, 2009). It especially ignores Article 40 VCDR, which guarantees diplomatic immunity to diplomats passing through the territory of a third state, while proceeding to take up (or to return to) his or her post, or returning to his or her own country. In these cases, the diplomat is not registered in the transit country; nor has he or she been issued with a diplomatic ID card. Confirmation of diplomatic status can take up to 24 hours, which is not expedient in most transit situations (Deckert, 2009).

In light of Article 40 VCDR and the sensitivity of diplomatic relations, transit states often accept diplomatic passports as conclusive evidence for the right to claim diplomatic immunity. Brown (1988) describes the case of an Algerian diplomat who passed through the

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Netherlands on his way to Brazil. In Amsterdam, a large number of weapons were confiscated from him, but the diplomat was allowed to continue his journey. Ministerial instructions require German law enforcement agencies to carefully evaluate all possible evidence when faced with an individual claiming diplomatic immunity through a foreign diplomatic passport. Only in urgent cases may authorities enquire with the German Foreign Office or directly with the relevant embassy. However, such an enquiry must be justified, and facts that militate against the individuals alleged status as a diplomat must be provided (Gemeinsames Minsterialblatt, 1993). Hence, enquiries are omitted if there is no emergency situation, or if doubt about the persons exceptional position is not expressed. Even in emergency situations, an enquiry with the German Foreign Office is not required, as signalled by the use of the word may in the ministerial guidelines. The only conceivable indicator that an individual is not entitled to diplomatic immunity is doubt about the passports authenticity. Because the master plan approach provides individuals with genuine diplomatic passports, such doubt cannot arise. Therefore fake diplomats with genuine diplomatic passports may successfully claim diplomatic immunity in jurisdictions which accept diplomatic passports as conclusive evidence (Deckert, 2009).

Even a fake diplomat without a diplomatic passport has been known to be granted diplomatic immunity. In Berlin/Germany, a Greek member of the European Patent Office caused a car accident at three oclock in the morning. When he handed over his red Employee ID which looked similar to a diplomatic passport the arresting police officer granted him diplomatic immunity and let him go. The driver did not even claim to be a diplomat. The mistake was only revealed when the German Foreign Office received the accident report (Schnedelbach & Kopietz, 2005). The dark figure of similar incidents can only be estimated. However, if police officers in Berlin, who are thought to have regular contact with state

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officials, grant diplomatic immunity in view of any red passport (and diplomatic passports are not necessarily red) then the actions of law enforcement officers further removed from diplomatic hubs (such as capital cities) are highly questionable.

Misuse of Diplomatic Passports a Crime? Only a few months ago, four Nepalese state officials were accused of making their diplomatic passports available to forgers (The Kathmandu Post, 2011); this supports the view that diplomatic passports are desirable objects in criminal circles. Forging a diplomatic passport is considered a criminal activity in most jurisdictions. However if diplomatic passports are issued to the passport holder by foreign state officials, as recommended by the master plan, then the document is technically genuine, not forged.

Referring to Section 132a of the German Criminal Code, Bolewski (2003) considers the illegitimate use of diplomatic titles to be a criminal offence in Germany. Section 132a states that whoever uses domestic or foreign designations of office or government service, titles, or public honours without authorisation, shall be punished with imprisonment for not more than one year or with a fine. In light of this section, careful examination is required to identify those who have the right to authorise the use of foreign designations of office or government service including, in this case, diplomatic titles. Accredited diplomats use two different types of diplomatic titles: their domestic diplomatic designation, and an international rank. In order to establish comparability between diplomats from different countries, the Congress of Vienna of 1815 established a system of diplomatic ranks which has been formalised internationally (Denza, 1998; Markel, 1951). The international ranks are: Ambassador, Minister, Minister-Counselor, Counselor, First Secretary, Second Secretary, Third Secretary, Attach, and Assistant Attach. International ranks are generally assigned by the sending

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state. However, most receiving states have reserved the right to approve the rank (Kahle, 1995). If a receiving state has reserved the right to approve the international rank of a diplomat, it must be considered the authorising agency in accordance with Section 132a of the German Criminal Code. However, if a diplomat is not accredited in any country, an authorisation process has not taken place; therefore the diplomatic title recorded in any diplomatic passport is assigned by the issuing state, and hence remains a foreign designation. Under international law, foreign diplomatic titles are not subject to approval by domestic jurisdictions. Because the exclusive authorisation of foreign diplomatic titles rests with the issuing state, the use of such designations abroad cannot constitute a criminal offence. Also, the use of such titles cannot be considered fraud or false certification since the diplomatic designation has been officially issued to the passport holder (Deckert, 2009).

The examples above illustrate that diplomatic immunity is indeed granted to fake diplomats. If diplomatic immunity is granted in situations where rigorous law enforcement should usually occur, the passport holders claims to diplomatic immunity serve the purpose of concealing other offences. Considering that, according to Article 27 VCDR, diplomats bags are exempt from being opened or searched, criminal organisations that work across borders may find the advantages of a genuine diplomatic passport appealing. As far as is known to the author, the sole act of claiming nonexistent diplomatic immunity is not criminalised in any jurisdiction. This raises the question of whether it should be criminalised.

Criminological and Legal Considerations Bolewski (2003) informs that some diplomatic missions in Germany [...] have recently started issuing German nationals with diplomatic passports of their state presumably for financial consideration or giving them blank passports. He further reflects on the effects

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that such misuse of diplomatic passports has on national and transnational criminal activities: These holders of foreign diplomatic passports [...] use these documents and titles in business transactions and in their dealings with authorities in order to appear particularly trustworthy or to prove their entitlement to privileges and immunities [...] or to provide official support for visa applications by third parties to German missions abroad. Occasionally such persons use their links with foreign diplomatic missions to procure diplomatic passports for other non-entitled persons in return for financial consideration. Diplomatic passports are used to prove claims to diplomatic immunity in order to conceal white-collar offences (Bolewski, 2003); whereas the acts of issuing the passport, as well as claiming nonexistent diplomatic immunity, have attributes of white-collar crime as described by Newburn (2007) and Croall (2001):

As part of their occupational role, some government representatives have the opportunity to issue genuine diplomatic passports without accrediting passport holders as diplomats in other jurisdictions. This involves the abuse of trust inherent in the occupational role as international customary law expects only authentic diplomatic agents to be issued with diplomatic documents (Wagner et al., 2007).

A reasonable amount of insider knowledge is required in order to exhibit the behaviours described in the fifty-three page long master plan. In addition, knowledge about the VCDR, diplomatic conventions, and local law enforcement guidelines is required so that the passport holder can behave in an appropriate manner when claiming diplomatic immunity.

At the scene, the passport holder appears to act legitimately in claiming diplomatic immunity when presenting the genuine diplomatic passport to law enforcement agencies.

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Often there is no complaint made, as law enforcement agencies often do not realise that they have granted diplomatic immunity to a fake diplomat. If a complaint is laid, this occurs long after the incident; cases of fake diplomats are often only revealed by ministries of foreign affairs through documentation forwarded by law enforcement agencies.

Claiming diplomatic immunity despite a lack of entitlement does not pose an immediate physical threat to anyone.

Establishing responsibility is problematic as government representatives should not issue passport holders with documents in the first place (Wagner et al., 2007). On the other hand, states enjoy great autonomy in issuing national documents. Strict regulations and law enforcement regarding proof of entitlement to diplomatic immunity could possibly prevent fake diplomats from successfully claiming diplomatic immunity. Hence domestic legal administration and law enforcement agencies could be held responsible.

The situation has an ambiguous legal status because the VCDR, respecting nation states autonomy, does not explicitly forbid governments from issuing diplomatic passports to people who are not accredited in another jurisdiction. The act of claiming diplomatic immunity when being pursued by law enforcement agencies for another offence can be viewed as an execution of the offenders legal right to avoid self-incrimination (Deckert, 2009).

The considerable amount of money required to obtain a genuine diplomatic passport, be it from government officials directly or through a consultant, limits this behaviour to an elite subset of people with already high social status, which white-collar offenders typically have.

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However, as opposed to most white-collar criminal behaviour (Newburn, 2007), claiming diplomatic immunity has no direct financial impact on any victim. The only possible outcome achieved is the non-pursuit of other offences by law enforcement agencies, i.e. avoiding prosecution and subsequent incarceration or fines. Thus, any financial effect attributable to the non-pursued offences would be indirect through revenue obtained by secondary criminality.

Although false claims to diplomatic immunity exhibit most of the key characteristics of white-collar crime, it could be argued that many countries, like the U.S., have strict guidelines in place for law enforcement officers that prevent that fake diplomats from successfully claiming diplomatic immunity. On one hand, there are a number of obstacles that avert rigorous law enforcement: the transit regulation of Article 40 VCDR as described above; the lack of an international database to allow law enforcement agencies immediate access to information on accredited diplomats worldwide; and the fragility of diplomatic relationships. Bolewski (2004) explains that diplomatic immunity is a sensitive issue, and disturbances may taint diplomatic relations with the sending state. When authentic diplomats, who can only present a diplomatic passport, are held by law enforcement agencies of the receiving state for an inappropriately long time, the sending state may apply the diplomatic principle of reciprocity to diplomatic agents stationed in its jurisdiction (Deckert, 2009). On the other hand, improved law enforcement guidelines, international information exchange about accredited diplomats, and education of law enforcement officers could be sufficient to prevent the success of false claims to diplomatic immunity.

Currently, as with most white-collar offences (Newburn, 2007), the misuse of diplomatic passports is self-regulated through diplomatic negotiations. Bolewski, a seasoned diplomat

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himself, cites a number of measures that the German Foreign Office has undertaken in the past in order to discontinue such conduct (2003). The German Foreign Office sends a written warning to the person concerned, stressing that such actions are contrary to good morals [...]. The effect of such communications depends on the wrongdoers willingness to admit to acting improperly and to take corrective action. If foreign diplomatic [...] posts are involved, the standard forms of diplomatic dialogue may be employed, also vis--vis the relevant foreign ministries, in order to convince foreign institutions or persons to respect the law in Germany. In a recent case, this fruitful dialogue led to an embassy [...] cancelling the diplomatic passport it had issued to an unauthorised person.

Conclusion As long as international law or bilateral agreements do not limit governmental sovereignty in this regard, national authorities are free to issue diplomatic passports to anybody. Governmental sovereignty also covers the right to ensure that foreign diplomatic passports are only used in accordance with international regulations. In compliance with the VCDR, national legislators are free to regulate the use of diplomatic passports through law enforcement policies or statutory law.

The misuse of diplomatic passports for purposes of shady business dealings and secondary criminality is not dissimilar to the use of fraudulent passports. As with fraudulent passports, potential harms include drug and arms dealing and human trafficking. Considering that the diplomatic bag, which enjoys diplomatic immunity from search or seizure, also covers shipping containers sheds light on possible dimensions of secondary criminality. Furthermore, non-criminal harms are posed to diplomatic security, international political relationships, and the very institution of diplomatic immunity. The misuse of diplomatic

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passports fits the accepted notions of white-collar crime. Although it has no direct financial impact on any victim, secondary criminality for which the passport is intentionally used may well victimise a number of individuals.

References Bolewski W (2003) Misuse and protection of diplomatic and consular titles. Australian Law Journal 77(11): 750-756. Bolewski W (2004) Diplomatic privileges in practice. Australian Law Journal 78(12): 788797. Bolewski W (2007) Diplomacy and international law in globalized relations. Berlin: Springer. Brown J (1988) Diplomatic immunity: state practice under the Vienna Convention on Diplomatic Relations. International and Comparative Law Quarterly 37(1): 53-88. Burton J W (1968) Systems, states, diplomacy and rules. Cambridge: Cambridge University Press. Cotter C (1998) Der vertrauliche Diplomatenreport, Available at: http://the-emotionexperts.com/Nach_dem_Tod/dervertraulichediplomatenreport.pdf. Croall H (2001) Understanding white collar crime. Buckingham: Open University Press. Deckert A (2009) Strafwrdigkeit und Strafgesetzgebung dargestellt am Beispiel des Vortuschens diplomatischer Immuitt. Gttingen: Cuvillier Verlag. Denza E (1998) Diplomatic law. Oxford: Clarendon Press.

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Gemeinsames Minsterialblatt (1993) Diplomaten und andere bevorrechtigte Personen: 589603. Gyngell A and Wesley M (2003) Making Australian foreign policy. Cambridge: Cambridge University Press. I.C.J. Reports (1980) United States diplomatic and consular staff in Tehran. Available at: www.icj-cij.org/docket/files/64/6291.pdf Kahle F (1995) Der Missbrauch von Titeln, Berufsbezeichnungen und Abzeichen Rechtsgut, Schutzzweck und Anwendungsbereich des 132a StGB. Marburg: Elwert. Markel E H (1951) Die Entwicklung der Diplomatischen Rangstufen. Erlangen: Junge. Newburn T (2007) Criminology. Devon: Willan Publishing. Petrocelli J (2005) Diplomatic immunity. Law and Order 53(5): 20. Rudd J L (2008) Diplomatic Immunity. FBI Law Enforcement Bulletin, February: 22-32. Schnedelbach L and Kopietz A (2005) Nicht jeder rote Ausweis is ein Diplomatenpass. Berliner Zeitung, 13 April: 21. The Kathmandu Post (2011) Red passport misuse: UML lawmaker Rana flops into hot water. Available at: www.ekantipur.com/the-kathmandu-post/2011/05/17/nation/red-passport-

misuse-uml-lawmaker-rana-flops-into-hot-water/221809.html. U.S. Department of State (2010) Diplomatic and Consular Immunity Guidance for Law Enforcement and Judicial Authorities. Available at: www.state.gov/documents/organization/150546.pdf

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Von Braunfels York (2003) Gentlemens Digest Diplomatenpass und Honorarkonsulat, der Weg zu Macht, Prestige, Steuerbefreiung und Immunitt. Was available at: www.gentlemensdigest.de (retrieved 16 April 2005). Wagner N, Raasch H, Prpstel T (2007) Wiener bereinkommen ber diplomatische Beziehungen vom 18.April 1961. Berlin: Berliner Wissenschafts-Verlag.

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How Do Human Rights Prosecutions Improve Human Rights after Transition?1

Hun Joon Kim Griffith Asia Institute, Griffith University, Brisbane

Conference sub-theme: Global Justice, Transborder Crimes and Human Rights

Abstract Human rights prosecutions are one of the main policy innovations that transitional regimes use to prevent future human rights violations, but social scientists still dont understand well the causal mechanisms through which such prosecutions work. Human rights trials are not only instances of punishment or enforcement, but also high-profile symbolic events that communicate norms, so it may be difficult to separate the deterrent impact of punishment from the normative impact of socialization. In a previous study, we found that human rights prosecutions after transition lead to improvements in human rights protection and that human rights prosecutions have a deterrence impact beyond the confines of the single country. In this paper, we further explore this important question by focusing on why and how human rights prosecutions improve human rights conditions. Hypotheses derived from deterrence theory and norms and socialization theory will be tested by using the more refined and enhanced data we collected with the Transitional Justice Database Project. We first test these hypotheses by exploring the possible divergent impact of convictions by themselves as compared to the impact of the entire prosecution process. Second, we examine the possible divergent effects between prosecutions of high and low ranking government officials.

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This material is based upon work supported by the National Science Foundation under Grant No. 0961226. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the National Science Foundation.

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Introduction Human rights prosecutions are one of the main policy innovations transitional regimes use to prevent future human rights violations. However, recent empirical studies have not been able to resolve a decade-long debate over the effects of human rights prosecutions on repression (Snyder and Vinjamuri, 2003; Kim and Sikkink, 2010; Olsen et al., 2010). Many scholars argue that human rights prosecutions prevent future violations while others believe that such prosecutions will not deter future violations and that, in some circumstances, they only exacerbate the situation by provoking still powerful old elites. Two state-of-the-field essays confirm the unsatisfactory level of accumulated knowledge. Mendeloff (2004: 358) finds many claims about the positive or negative effects of transitional justice but relatively little solid evidence to support these claims. Thoms, Ron and Paris (2009: 23), after reviewing one hundred recent empirical studies, conclude: Empirical evidence of positive or negative effects is still insufficient to support strong claims.

In our previous study (Kim and Sikkink, 2010), we addressed this problem by examining whether human rights prosecutions deter future violations of human rights in transitional countries. We collected new data on human rights prosecutions in transitional both from authoritarian regimes and civil wars countries between 1980 and 2004 and tested various hypotheses linking human rights prosecutions to repression. We found that transitional countries with human rights prosecutions are less repressive than countries without such prosecutions. In this paper, we further explore this important question by studying the causal mechanisms through which human rights prosecutions deter repression. We test various hypotheses derived from deterrence theory and norms and socialisation theory by using more refined and enhanced data we recently collected. We first test these hypotheses by comparing the impact of prosecutions that result in convictions to the impact of a different prosecution
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measure that recorded the process of prosecution, including prosecutions that dont result in convictions. Second, we examine the possible divergent effects between prosecutions of high and low ranking government officials.

We found that not only those prosecutions that resulted in conviction but also prosecution processes themselves have a deterrence effect on future human rights violations. Second, both the prosecutions and convictions of low-level state officials, who actually carry out human rights violations, have a strong deterrence effect. Prosecutions of high-level state officials, on the other hand, had divergent effects. High-level human rights prosecutions that ended in convictions are associated with improvements in human rights, but the process of high-level prosecutions in and of itself did not have a statistically significant effect.

How Do Human Rights Prosecutions Improve Human Rights? The Deterrence Hypothesis The most common hypothesis on the impact of human rights prosecutions involves the belief in the deterrence effect of criminal prosecutions (Orentlicher, 1995; Mendes, 1997; Akhaven, 2001). The debate over transitional justice is related to an important literature on deterrence in domestic systems, which focuses on how prosecution and punishment inhibit individual criminal activity (Matsueda et al., 2006). Reviews of the deterrence literature from domestic legal systems now conclude that there is much firmer evidence for a substantial deterrent effect than there was two decades ago (Nagin, 1998). Of particular relevance to our paper is the finding that an increase in the likelihood of arrest and punishment has a greater deterrent effect than an increase in the severity of punishment (McCarthy, 2002; Bueno de Mesquita, 1995; Becker, 1968). In other words, research on domestic crime rates has not shown that

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more severe punishment, such as the death penalty, deters crime, but it does indicate that an increase in the likelihood of sanctions is associated with deterrence.

Human rights prosecutions impose costs and sanctions on former state officials and carry the possibility of punishment. Prosecutions lead to sanctions of various sorts (arrest, detention, incarceration, or loss of income or prestige) that may increase the perceived costs of repression. For this approach, the main mechanism through which prosecutions lead to improvements in human rights practices is by increasing the costs of repression for state officials. Some scholars believe that only human rights prosecutions that end in verdicts or convictions could have an effect (Olsen et al., 2010). However, we strongly believe the entire process of prosecution, including indictments, extradition, preventive detention, and trials, impose costs on the accused even the prosecutions have not yet resulted in verdicts or convictions. For example, the prosecutions of Augusto Pinochet in the United Kingdom and in Chile, and of Slobodan Milosevic in the ICTY did not result in convictions because both died before the completion of their trials. Although neither was convicted, their indictments, detentions, and trials were very costly to them. Our data set thus records judicial activity that forms this process of human rights prosecutions. In order to respond to scholars who stress the importance of verdicts, however, we have now collected additional information for our entire data base to record those prosecutions that resulted in convictions. We anticipate that the entire process of prosecution can produce deterrence effects, but that actual convictions impose the greatest costs on perpetrators. If deterrence theory is correct that a greater likelihood of punishment deters future crimes, it leads to the following predictions:

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Hypothesis 1: Countries that have held human rights prosecutions will see greater improvements in human rights practices than those countries that have not held human rights prosecutions.

Hypothesis 2: Countries that have held human rights prosecutions that ended in convictions will see greater improvements in human rights practices than those countries that have not held such human rights prosecutions, or countries where prosecutions have not resulted in convictions.

Norms and Socialisation Hypothesis The alternative to the deterrence hypothesis is the argument that sometimes compliance occurs for normative or managerial reasons even in the absence of strong enforcement (Chayes and Chayes, 1993). Since issues of state and individual reputation, esteem, and legitimacy are at stake in human rights debates, the processes of the mobilisation of shame through advocacy networks and international organisations could lead to behavioral change without stronger enforcement (Risse et al., 1999). In this approach, human rights prosecutions are part of a process of socialisation through which the norms of domestic and international society are communicated and reinforced, not only to state officials, but also to broader publics. Norm theories stress that state officials also care about the social costs imposed by trials, and are attentive to the general norms of society and the role of institutions, including judicial institutions, in communicating those norms.

But we should be clear that the norms literature does not say that stronger enforcement is counterproductive for compliance, just that strong enforcement may not be necessary in all circumstances and that behavioral change is possible in the absence of strong enforcement
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mechanisms. Many legal scholars and political science norms theorists who write on human rights believe that human rights change is usually the result of both normative and coercive factors, such as aid cut-offs or other sanctions (Risse et al., 1999; Cardenas, 2007; Akhaven, 2001: 13; Weissbrodt and Bartolomei, 1991). Thus, they would tend to agree that the greater enforcement of human rights norms through prosecutions will complement and enhance the processes of naming and shaming that have long been a staple of the human rights movement.

Human rights prosecutions of high-profile state officials draw more social and media attention to their processes and outcomes than do prosecutions of lower level officials such as police officers and prison guards. Thus, if human rights prosecutions exercise influence primarily through processes of social communications of norms, we would expect to see that high-level prosecutions have a greater impact than low-level prosecutions. This would leads to the following predictions:

Hypothesis 3: Countries that have held high-level human rights prosecutions will see greater improvements in human rights practices than those countries that have held low-level human rights prosecutions.

Research Design To test these hypotheses, we used our new dataset on human rights prosecutions in 71 countries that had undergone democratisation between 1980 and 2006. Democratisation refers to a situation where a state changes from a repressive and closed regime such as a military, one-party, authoritarian, dictatorial, or communist regime to an open and decentralised government. Usually, the evident indicator of democratic transition is a free,

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fair, secret, and direct national election for major government offices, including head of state (Huntington, 1991: 7). We determined transitional countries using the dataset from the Polity IV Project following the established practice in the field (Epstein et al., 2006; Mansfield and Snyder, 2002; Olsen et al., 2010).

The Dependent Variable We explore the impact that human rights prosecutions have on a core set of human rights violations torture, summary execution, disappearances and political imprisonment which we refer to as repression, following established practice in the quantitative literature (Poe et al., 1999). Human rights prosecutions mainly address these types of human rights violations, so we should look for impact on a dependent variable that is a measure of these physical integrity rights. We operationalised it using the physical integrity rights index from the Cingranelli-Richards (2004) human rights database (CIRI).

Independent Variables A human rights prosecution is the criminal prosecution of former state officials for human rights violations while in office. Domestic human rights prosecutions are those conducted in a single country for human rights abuses committed in that country. While information is readily available on the relatively small number of international trials, the data on domestic prosecutions is dispersed and difficult to quantify. To address this problem, we created a new database of human rights prosecutions by coding from the State Department reports, which are generally considered to be a reliable source of information on states human rights practices.

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In order to test our hypotheses regarding the mechanisms of human rights prosecutions, we created three additional variables to measure the differences in the prosecution process. First, we further collected information from our data base on whether the prosecution led to a conviction in the court of law in the country. Second, we created two variables that measure the human rights prosecutions of high-profile and low-profile state officials, defined by the rank of the accused. Prosecutions are high-level if the accused falls under any of the following categories: presidents or other heads of state, generals, admirals, ministers, and heads/directors of security and intelligence agencies. Low-level prosecutions would include those of soldiers, police officers, and prison guards, as well as military officers or states officials below the levels of head of state, general, admiral, minister, or head of security sectors.

Models The basic structure of the data is an unbalanced time-series cross-sectional data. In line with our previous work, we used pooled ordinary least squares (OLS) regression with panel corrected standard errors (PCSE) and a lagged dependent variable. The basic PCSE model is:

Yi ,t = 0 + 1Yi ,t 1 + 2 X i ,t + Z i ,t + ei ,t ,
where

(1)

Yi ,t

represents our measure of repression,

Yi ,t 1

is a one year lag of the dependent

variable, and

X i ,t

is the respective measure of prosecution,

Z i ,t

is a vector of control variables,

ei ,t

is a error term. A set of control variables is included to isolate the net effect of human

rights prosecutions from all other factors that might affect the level of repression. Guided by previous studies, eight control variables democracy, international wars, civil wars, treaty ratification, economic standing, economic growth, population size, and population growth were included. We anticipate that factors that were proven to be important in the previous studies will continue to be important.
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Findings Table 1 reports the results of estimating the effect of human rights prosecutions using PCSE models. Model 1 is a replication of our previous model to our new sample. Although we adjusted our sample to countries with democratic transition and expanded for a longer period (1980-2006), our finding are consistent with our previous study (Kim and Sikkink, 2010). Human rights prosecutions have a strong and statistically significant impact on decreasing the level of repression. When controlled for all other relevant factors, the level of repression in countries with prosecutions is significantly lower than that of countries without prosecutions.

Model 2 reports the result of estimating the effect of human rights prosecutions that ended in convictions. The variable measuring convictions turned out to be statistically significant. The result from Table 1 strongly supports our assumption that not only human rights prosecution that ended in convictions but also the process of prosecution including trials that that did not lead to convictions have a deterrence effect on future violations of human rights. This supports the general findings from the deterrence literature. Not only the certainty of punishment (i.e. convictions) but also the likelihood of punishment in the course of the entire process of prosecution has a deterrence effect on future violations. However, the difference in the magnitude of the prosecution variable in Model 1 and 2 suggest that the deterrence effect is stronger for those prosecutions ending in convictions. In sum, the result from Table 1 strongly supports the deterrence hypothesis. While the process of prosecution contributes to improvements in human rights practices, when such prosecutions result in convictions they have a greater impact. This suggests that the process of prosecution itself may have a deterrence effect because people anticipate it will lead to a conviction.

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Table 1. Impact of Human Rights Prosecution on Repression

Model 1 Prosecution Human rights prosecution Conviction Controls Repression (lagged) -0.200** (0.101) -0.279** (0.131) Model 2

0.480*** 0.480*** (0.027) (0.027) Democracy -0.073*** -0.073*** (0.016) (0.016) International conflict 0.881*** 0.883*** (0.253) (0.253) Civil conflict 1.191*** 1.194*** (0.132) (0.132) Commitment to human rights treaties 0.074 0.072 (0.059) (0.059) GDP per capita (logged) -0.148*** -0.149*** (0.044) (0.044) Annual GDP growth rate (%) -0.011 -0.010 (0.008) (0.008) Population (logged) 0.284*** 0.279*** (0.033) (0.033) *** Population change (%) -0.129 -0.128** (0.050) (0.050) Africa -0.360** -0.351** (0.146) (0.144) Asia -0.236* -0.214* (0.126) (0.123) Europe -0.940*** -0.916*** (0.139) (0.138) Year 0.007 0.007 (0.008) (0.008) Constant -1.310** -1.249** (0.518) (0.516) Observations 1007 1007 Number of states 69 69 R square 0.703 0.704 Chi square 2943 2977 Note: Table entries are OLS regression estimates corrected for panel-specific autocorrelation using Stata 11.1/SE. Panel corrected standard errors are included in the parentheses. * p < 0.10, ** p < 0.05, *** p < 0.01

Table 2 reports the result of estimating the effect of high-level and low-level human rights prosecutions (Model 3a and 3b) and convictions (Model 4a and 4b) on repression. Overall, low-level prosecutions and convictions turned out to be statistically significant in deterring future violations as shown in Model 3b and 4b. Most actual human rights violations are
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carried out by low-level state officials such as police officers, secret service agents, prison guards, and foot soldiers, although the orders may come from higher level state officials. Because of this, the fact that prosecutions of low-level state officials have a strong deterrence effect is of great interest. However, the impact of high-level prosecutions and convictions diverges as shown in Model 3a and 3a. In line with the low-level convictions, human rights prosecutions of high-profile state officials that ended in conviction have a statistically significant effect on repression. This suggests once again that convictions have a stronger deterrence effect than the process of prosecution. High-level convictions have a greater deterrence effect compared to the convictions of low-profile officials.

However, in Models 3a, human rights prosecutions that did not end in convictions turn out not to be statistically significant. This could suggest that the deterrence hypothesis is stronger than the norm and socialisation hypothesis in explaining the effect of human rights prosecutions. High-level prosecutions, often symbolic and performative, often lead to acquittal or dismissal of the case. In some cases, prosecutions proceed in absentia (e.g. Ethiopia) which also decreases the credibility of the court and diminishes the effect of these high-profile cases because even if convicted, the accused with not be punished. It may also be true that the high-level prosecutions are highly political and thus uncertain in nature. The uncertainty associated with high-level prosecutions also could diminish the deterrence effect of these prosecutions. Another possible interpretation of these findings is that prosecutions of high level state officials that fail to conclude or result in dismissals or acquittals, are communicating a different set of norms and expectations. They may be seen as communicating norms about impunity, or about the political and legal privileges of high level officials. Rather than evidence of due process or rule of law, they may be seen as revealing

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that high level officials are not bound by the law. The cases with convictions, however, communicate the norm that even high level officials are not above the law.

Table 2. Impact of Human Rights Prosecutions on Repression by Levels of the Accused

Model 3a Prosecution High-level prosecution Low-level prosecution High-level conviction Low-level conviction Controls Repression (lagged) -0.168 (0.144) -0.206* (0.108) -0.376* (0.216) -0.297** (0.137) Model 3b Model 4a Model 4b

0.481*** 0.481*** 0.482*** 0.481*** (0.027) (0.027) (0.027) (0.027) Democracy -0.073*** -0.073*** -0.073*** -0.074*** (0.016) (0.016) (0.016) (0.016) *** *** *** International conflict 0.873 0.864 0.877 0.870*** (0.253) (0.253) (0.254) (0.253) Civil conflict 1.188*** 1.191*** 1.189*** 1.194*** (0.132) (0.132) (0.132) (0.132) Commitment to human rights treaties 0.072 0.073 0.068 0.072 (0.059) (0.059) (0.059) (0.059) GDP per capita (logged) -0.154*** -0.147*** -0.152*** -0.148*** (0.044) (0.044) (0.044) (0.044) Annual GDP growth rate (%) -0.011 -0.010 -0.010 -0.010 (0.008) (0.008) (0.008) (0.008) Population (logged) 0.284*** 0.281*** 0.280*** 0.279*** (0.033) (0.033) (0.033) (0.033) Population change (%) -0.136*** -0.128** -0.135*** -0.127** (0.050) (0.050) (0.050) (0.050) Africa -0.323** -0.357** -0.331** -0.351** (0.144) (0.145) (0.143) (0.144) Asia -0.195 -0.227* -0.197 -0.210* (0.123) (0.125) (0.122) (0.122) *** *** *** Europe -0.921 -0.932 -0.920 -0.913*** (0.139) (0.139) (0.138) (0.138) Year 0.007 0.007 0.007 0.007 (0.008) (0.008) (0.008) (0.008) Constant -1.295** -1.278** -1.244** -1.247** (0.519) (0.516) (0.515) (0.515) Observations 1007 1007 1007 1007 Number of states 69 69 69 69 R square 0.702 0.703 0.703 0.703 Chi square 2929 2945 2929 2954 Note: Table entries are OLS regression estimates corrected for panel-specific autocorrelation using Stata 11.1/SE. Panel corrected standard errors are included in the parentheses. * p < 0.10, ** p < 0.05, *** p < 0.01

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Conclusions The results of the current round of analysis support the findings of our earlier research (Kim and Sikkink, 2010), and the general narrative about effectiveness as reported in The Justice Cascade: How Human Rights Prosecutions are Changing World Politics (Sikkink, 2011). It provides more evidence for those conclusions by including a longer time period. It also offers some additional theoretical and policy insights that are not present in the earlier work. First, we now see that while the whole process of prosecution contributes to the deterrence effect of human rights prosecutions, those prosecutions that result in convictions have a greater effect than those that do not. This suggests that if a country were carrying out only a pro forma exercise in human rights trials that never resulted in convictions, they could not expect such trials to lead to improvements in human rights. The fact that some prosecutions result in dismissals or acquittals for lack of evidence will not necessarily undermine the deterrence effect, but a sustained failure to convict could diminish the belief in the likelihood of punishment.

Theoretically, we are finding more support for a rational choice deterrence argument than we are for the normative communication or expressive argument. Although the entire process of prosecution and not just verdicts or convictions is associated with improvements in human rights, prosecutions that result in convictions have a stronger effect. This could imply that the process of prosecution had an impact because people anticipate that it will result in a conviction, and thus adjust their behavior accordingly. Second, prosecutions of high level officials that result in dismissals or acquittals have a statistically insignificant effect on human rights practices. This suggests that only punishment or the possibility of punishment matters, and when it becomes clear that a judicial process will not result in punishment, it does not have an impact. But it could also imply that a prosecution that results in an acquittal

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communicates norms about impunity and the inability of rule of law to constrain powerful individuals.

Because trials are complex phenomena, we cannot yet fully explain the processes through which they work, but this research confirms once again the both the likelihood and the certainty of punishment appear to be important parts of the explanation for improving the human rights situation in transitional countries using prosecutions. In terms of policy implications, such research may imply that observers are able to distinguish sincere prosecutions from insincere ones. If prosecutions against high level officials are routinely dismissed or lead to acquittals, other state officials may conclude both that the norm of impunity is intact and that the risk of punishment is not great. If, however, human rights prosecutions reveal a higher probability of conviction for both high and low levels officials, accountability norms are reinforced and the anticipation of a likelihood of punishment could prevent future human rights violations.

References Akhaven P (2001) Beyond impunity: Can international criminal justice prevent atrocities? American Journal of International Law 95: 7-31. Backer D (2009) Cross-national comparative analysis. In: Chapman A R, Van der Merwe H and Baxter V (eds) Assessing the impact of transitional justice: Challenges for empirical research. Washington, DC: United States Institute of Peace Press. Becker G (1968) Crime and punishment: An economic approach. The Journal of Political Economy 76: 169-217.

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Bueno de Mesquita BaLEC (1995) Self-interest, equity and crime control: A game theoretic analysis of criminal decisions. Criminology 33: 483-517. Cardenas S (2007) Conflict and compliance: State responses to international human rights pressures. Philadelphia: University of Pennsylvania Press. Chayes A and Chayes A (1993) On compliance. International Organization 47: 175-205. Cingranelli D L and Richards D L (2004) The Cingranelli-Richards (CIRI) human rights database coder manual version 2008.3.13. Epstein D L, Bates R, Goldstone J, Kristensen I and OHalloran S (2006) Democratic transition. American Journal of Political Science 50: 551-569. Huntington S P (1991) The third wave: democratization in the late twentieth century. Norman, OK: University of Oklahoma Press. Kim H and Sikkink K (2010) Explaining the deterrence effect of human rights prosecutions for transitional countries. International Studies Quarterly 54: 939-963. Mansfield E and Snyder J (2002) Democratic transition, institutional strength, and war. International Organization 56: 297-337. Matsueda R L, Kreager D A and Huizinga D (2006) Deterring delinquents: A rational choice model of theft and violence. American Sociological Review 71: 95-122. McCarthy B (2002) New economics of sociological criminology. Annual Review of Sociology 28: 417-442. Mendeloff D (2004) Truth-seeking, truth-telling, and postconflict peacebuilding: Curb the enthusiasm? International Studies Review 6: 355-380.
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Mendez J E (1997) In defense of transitional justice. In: McAdams A J (ed) Transitional Justice and the Rule of Law in New Democracies (pp. 1-26). Notre Dame, IN: University of Notre Dame Press. Nagin D S (1998) Criminal deterrence research at the outset of the Twenty-First century. In: Tonry M (ed) Crime and justice: A review of research (pp. 1-42). Chicago: University of Chicago Press. Olsen T D, Payne L A and Reiter A G (2010) Transitional justice in balance: Comparing processes, weight efficacy. Washington, DC: United States Institute of Peace Press. Orentlicher D F (1995) Settling accounts: The duty to prosecute human rights violation of a prior regime. Yale Law Journal 100: 2537-2615. Poe S C, Tate N and Keith L C (1999) Repression of the human right to personal integrity revisited. International Studies Quarterly 43: 291-313. Risse T, Ropp S C and Sikkink K (1999) The power of human rights. International norms and domestic change. Cambridge: Cambridge University Press. Sikkink K (2011) The justice cascade: How human rights prosecutions are changing world politics. New York: W.W. Norton. Snyder J and Vinjamuri L (2003) Trial and errors: Principle and pragmatism in strategies of international justice. International Security 28: 5-44. Weissbrodt D and Bartolomei M L (1991) The effectiveness of international human rights pressures: The case of Argentina 1976-1983. Minnesota Law Review 75.

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Vulnerable and Invisible: Depictions of Trafficking Victims in Public Awareness Campaigns

Erin OBrien School of Justice, Faculty of Law, Queensland University of Technology

Sarida McLeod School of Justice, Faculty of Law, Queensland University of Technology

Conference sub-theme: Global Justice, Transborder Crimes and Human Rights

Abstract Public concern about the crime of human trafficking has dramatically risen over the last two decades. This concern and panic has both spawned and been fuelled by an array of public awareness campaigns that aim to educate the public about this crime. Campaigns such as the Blue Blindfold Campaign in the UK, the UN-driven Blue Heart Campaign, and the worldwide Body Shop campaign have contributed to the publics awareness and, to an extent, understanding of the phenomenon of human trafficking. This research explores these and other government and non-government campaigns aimed at raising public awareness of human trafficking. It questions the rationale, call to action and impact of these efforts, and analyses the depiction of trafficking victims in these campaigns. In particular, this research argues that some of these campaigns perpetuate an understanding of a hierarchy of victimisation of trafficking. A public focus on sex trafficking often results in the conflation of prostitution and trafficking, and renders invisible the male and female victims of trafficking for other forms of labour.
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Introduction The crime of human trafficking has captivated the attention of governments, charities, international bodies, activists organisations, corporations and the general public for the last two decades. Sensational news reports, documentaries, bestseller books and blockbuster films have fuelled a fascination with the stories of women, men and children lured from their homes with the promises of a better life, only to be forced into a form of modern day slavery. Amidst a panic focused on stopping the trade in people, a plethora of awareness campaigns has emerged. Indeed, awareness campaigns have been recognised as an important part of the fight against human trafficking, warranting inclusion in the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, as well as the United Nations Organisation on Drugs and Crime (UNODC) toolkit to combat trafficking in persons.

These campaigns have the capacity to contribute to the publics understanding of the nature of human trafficking and this research analyses several campaigns in order to explore how they contribute to the construction of human trafficking narrative. This paper examines the existing research on awareness campaigns, and outlines a new direction for an examination of awareness raising activities. The campaigns are then examined for key themes in the narratives they establish. These themes include a focus on trafficking for sexual exploitation versus trafficking for other forms of labour, as well as the persistent depiction of young, female victims of trafficking to the exclusion of adult male victims. It is argued that a persistent focus on sex trafficking by these campaigns contributes to the belief that trafficking for sex is a more significant problem than trafficking for other forms of labour. It is also argued by favouring imagery depicting vulnerable young women and girls, these campaigns render invisible male victims of trafficking, as well as women who may have chosen to work in the sex industry but have nonetheless been exploited.

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Existing Research To date, there has been little research into how awareness campaigns have contributed to the shaping of attitudes and understandings of human trafficking among their audience. While some literature has investigated how the discourses and policy responses surrounding human trafficking have served to shape a human trafficking narrative (OConnell Davidson 2006; Doezema 2000; Musto 2008; Augustin 2008a, 2008b, 2008c; Segrave and Milivojevic 2004), very few have focused on how this narrative has been transmitted to the public. Instead, research has primarily focused on how those human trafficking narratives have influenced political decision-making, particularly in relation to trafficking policies in nation-states and during the negotiations leading to the establishment of the UN Trafficking Protocol in 2000 (Weitzer 2007; Stolz 2005). Existing research analyzing anti-trafficking programs also make minimal, or no, mention of awareness campaigns (Samarasinghe and Burton 2007; Tzvetkova 2002; Pickup 1998; Shinkle 2007; Sutherland 2007; Segrave 2004). However, the existing research on human trafficking awareness campaigns offers several key criticisms of their contribution to public awareness, as well as their impact.

Andrijasevics research on awareness campaigns criticizes them for the objectification of female victims (2010; 2007; 2004; and with Anderson 2008; 2009). Andrijasevic provides an in-depth critique of the International Organisation of Migrations European anti-trafficking awareness campaigns during the 1990s, arguing that many of the images utilised in those awareness-raising posters contribute[d] to the objectification of women as they capture womens bodies within stereotypical representations of femininity and hence, demarcate the limits within which women can be imaged as active agents (2007: 26). This critique is reflected in the wider field of human trafficking literature, with many scholars arguing that the entire discourse of human trafficking further victimises victims by conceiving of them as

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devoid of agency (Augustin 2008a, 2008b, 2008c; Doezema 2000; Chapkis 2003; OConnell Davidson 2006).

A second area of criticism for existing campaigns is in the way in which they may act as an anti-immigration tool. Sharma argues that the narrative framework of anti-trafficking campaigns reinforce restrictive immigration practices, shore up nationalized consciousness of space and home and criminalize those rendered illegal within national territories (2003: 53). Underlying this argument is a suggestion that, by placing an emphasis on the dangers of migration, anti-trafficking campaigns align with government attempts to restrict the mobility of migrants by advocating the idea that migrants are almost (if not) always better off at home (54). Nieuwenhuys and Pecoud echo this belief, arguing that anti-trafficking campaigns launched in central and eastern Europe attempt to reduce emigration before migrants reach the border by promoting a negative image of migration to western Europe (2007: 1674). In doing so, Nieuwenhuys and Pecoud suggest that anti-trafficking campaigns highlight the ambiguities between security and humanitarian perspectives of immigration.

Andrijasevic and Anderson (2009) highlight the ways in which campaigns often overlook the complexities surrounding the interplay between migrant work, trafficking and illegal migration. They argue that anti-trafficking campaigns mislead the public in relation to what assistance is actually being offered to victims. The authors note that the term human trafficking is often only used descriptively and does not correlate with what is administratively required for an individual to be considered trafficked and capable of accessing governmental existence. For example, the threat of deportation may be evidence of a forced labour relation as characterized by posters encouraging the public to spot signs of trafficking. However, the state is often seen as a key enforcer of immigration law, and thus

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threats of deportation against trafficking victims are most likely to be carried out by the state, most often seen to intervene on behalf of employers, rather than migrants (Andrijasevic and Andersons 2009, 155). Moreover, they argue that a focus on differentiating human trafficking victims from the more regular phenomenon of migrant exploitation invites a race to the bottom where only those who are most abused and exploited count (Andrijasevic and Anderson 2009, 154). Thus, the authors suggest that anti-trafficking campaigns must move beyond the victim model and towards a broader evaluation of labour and immigration legislation as a whole.

A third existing critique of anti-trafficking campaigns relates to the evidence-base for these efforts, as well as subsequent evaluations of the impact of campaigns. Hames, Dewar and Napier-Moores (2010) study on behalf of the Global Alliance Against Trafficking in Women provides a comprehensive evaluation of the evidentiary problems facing human trafficking awareness campaigns. They argue that due to the lack of baseline surveys of knowledge and attitudes conducted, it is impossible to assess the extent to which awareness has been increased by campaigns. They also charge several campaigns, notably the United Nations Global Initiative to Fight Trafficking (UN.GIFT) campaigns, with raising awareness of their organization or their work, rather than of the crime of trafficking itself.

The US Coalition for Child Survivals campaign to end modern day slavery is a prime example of the inadequacy of evaluation mechanisms. McDonnells evaluation of this campaign states that, There is no doubt that advocacy groups have significantly raised public awareness of modern day slavery (2007: 6). However, the sources cited for this conclusion were the fact that human trafficking continues to be featured in major newspaper articles, television programs and conferences and the opinions of two other members of the Coalition

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(6). The study made no mention of any attempt to survey the campaigns target audience either before, during or after the campaign.

There appears to be no publicly available data relating either to the effectiveness of awareness campaigns nor baseline surveys of their target audience, apart from the notable exception of the survey report conducted by Child Wise and The Body Shop for their Stop Sex Trafficking of Children and Young People campaign. The Community Attitudes on Sex Trafficking in Children and Young People Survey Report (2010) collates the results of 17,949 customer surveys collected by The Body Shop during the first year of the campaign from every Australian state and territory. Notably, survey results indicated that 91% of participants were aware of people trafficking in some form and that 48% gained their information from the media. The Body Shop campaign was the next most commonly cited source of information (20%), with the activities of non-profit organisations (awareness campaigns included) being cited by only 10% of participants.

The survey report serves both to suggest that anti-trafficking awareness campaigns may not be as effective in communicating information to the public as claimed, and to highlight the need for more data to be collated in relation to public responses to awareness campaigns. The focus on child sex trafficking necessarily limits the applicability of the survey results to other areas of research. Moreover, given the surveys were distributed among customers who, by virtue of being in a Body Shop store, were almost necessarily aware of the campaign due to the promotional materials placed prominently throughout the store, the report may present an overly optimistic picture of the effectiveness of the Stop Sex Trafficking of Children and Young People campaign in raising awareness among the general public.

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Existing research has made some inroads into understanding the basis of awareness campaigns, and the impact they can have in the depiction of especially female victims. This research will provide a comparison of a number of campaigns initiated by different organisations in order to begin building a better understanding of how persistent awareness campaigns construct a public understanding of the realities of trafficking.

Research Methodology This paper is drawn from an analysis of ten anti-trafficking awareness campaigns: the Blue Blindfold campaign, the Blue Hearts campaign, the Purple Teardrop campaign; the Body Shop campaign; the Rescue and Restore campaign; the ATEST campaign; the Hidden in Plain Sight campaign; the Euro 08 campaign; the EU Anti-Trafficking Day campaign and The Truth Isnt Sexy campaign. The analysis of these campaigns seeks to explore previously un-examined aspects of anti-trafficking awareness campaigns. In particular, it questions the rationale, call to action and impact of these efforts. It also analyses the construction of human trafficking through the establishment of victim narratives, which is the primary focus of this paper.

These specific campaigns were chosen for analysis for several reasons. Firstly, a mix of government, non-government and corporate campaigns were desired in order to reflect a diversity of actors engaged in awareness-raising activities. Of these campaigns, three were government-run or primarily government-funded, two were devised by international organisations, four were run by non-government organisations and one was established by a commercial enterprise. Secondly, due to the primary language spoken by the researchers, all of these campaigns published materials in English. Materials in other languages are also available, and imagery of non-English language campaigns could also be analysed in further

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research. Thirdly, numerous campaigns were excluded from this study on the basis that they were unlikely to have reached a large target audience. These included church-run trafficking awareness days, and local citizens organisations efforts to fundraise for trafficking organisations. Finally, additional campaigns discovered during this research but excluded from the sample focused on other forms of sexual exploitation and the sex industry as well as sex trafficking. The campaigns chosen for this research were selected due to their declared focus as raising awareness about the crime of human trafficking. They were also chosen in order to provide a mix of government-initiated.

The materials associated with these campaigns (including websites, posters and leaflets) have been reviewed in order to conduct a discourse analysis of the primary narratives put forward by the campaigns. These narratives were identified through an analysis of the primary and secondary images used in the campaign materials, as well as the textual story associated with those images. In particular, the gender of the victim, and the industry highlighted as a destination for trafficking, are identified in order to gain a better understanding of how these campaigns may contribute to building an understanding of the nature of human trafficking amongst their target audience.

Two themes emerged strongly in the campaign narratives. The first is a focus on trafficking for sexual exploitation versus other forms of trafficking. The second is a focus on female victims of trafficking.

Trafficking for Sexual Exploitation versus Trafficking for Other Forms of Labour One clear commonality amongst the campaigns is a prioritising of sex trafficking as opposed to trafficking for other forms of labour. Four out of ten of the campaigns focus virtually

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exclusively on the issue of sex trafficking. The Purple Teardrop campaign, established by NGO Soroptomist International, seeks to bring attention to the issue of Women and children trafficked for prostitution. The Body Shop campaign, run in conjunction with the nongovernment organisation Child Wise, asks people to sign a petition to help stop children being tricked into trafficking for sexual exploitation. The Euro 08 campaign speaks to a more specific audience. Released prior to and during the European soccer world cup in 2008, it urged participants and spectators attending the event to be aware of the possibility that women searching for a better future may find themselves exploited and trafficked. The fourth campaign, The Truth Isnt Sexy, also focused exclusively on women trafficked for sexual exploitation. This campaign, endorsed by the UK Human Trafficking Centre and Crime Stoppers, utilises graphics modelled on print ads for sexual services in order to draw attention to women who have been forced into the sex industry, with the tag line that, the truth isnt sexy.

Of the other campaigns examined, all draw attention sex trafficking, but also present narratives reflective of victims trafficked into other forms of labour. The Blue Blindfold campaign, which originated in the UK and Ireland but was also released in the United States and Canada, declares that people can be trafficked into a range of industries. The Blue Heart campaign, funded by the United Nations Office on Drugs and Crime and the United Nations Global Initiative to Fight Human Trafficking, also represents a diversity of cases of trafficking. The Hidden in Plain Sight and Rescue and Restore campaigns, established by the US Government, call for increased awareness and reporting of trafficking in all industries, not specifically the sex industry. The ATEST (Alliance to End Slavery and Trafficking) campaign, created by a coalition of 11 US human rights and anti-slavery organisations including ECPAT and the Polaris Project which often focus primarily on sex trafficking,

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attacks slavery in all forms through a series of billboard and public services announcements. The final campaign, released by the European Commission in conjunction with the EU AntiTrafficking Day held every year since 2007 depicts trafficking in a number of industries, with the tagline some people are very attached to their jobs.

What is notable, however, is that while these six campaigns included narratives of trafficking in a number of different industries, they universally include victim stories and narratives that specifically relate to the sex industry. During the search for awareness campaigns on human trafficking, all the campaigns drawing attention to only one form of trafficking focused on trafficking for sexual exploitation. As the only form of trafficking featured in all ten campaigns, and exclusively in nearly half of the campaigns, sex trafficking is positioned as somewhat unique. It is possible that this focus on sex trafficking by the majority of campaigns, to the exclusion of other forms of trafficking, contributes to an understanding of trafficking as directly associated with sexual exploitation and the sex industry.

The targeting by these campaigns of trafficking into the sex industry may contribute to a public belief that human trafficking is primarily for sexual exploitation. It may also conflate sex work with trafficking, especially where migrant women are concerned. Agustin (2008a; 2000b; 2008c) openly condemns attempts by anti-trafficking actors to present migrants engaged in sex work as victims of trafficking. Agustin stresses that many migrants engaged in sex work reject being defined as sexually vulnerable and in need of rescuing and protection (2008a), and have instead actively chosen sex work as a way of overcoming social, economic and cultural disadvantages.

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Chapkis (2003) argues that the problem of migrant and sex worker abuse is unlikely to be resolved until hostile public attitudes towards poor women, undocumented workers and prostitutes are changed by a greater understanding of the economic disparities and social problems that have spawned human trafficking, and effective government responses to those issues are provided.

Trafficking Victims The depiction of the age, gender and race of victims through the choice of primary images in these campaigns also contributes to a particular understanding of trafficking. These images are sometimes supplemented by or replaced with a textual narrative that further influences public understandings of trafficking.

Three campaigns only reflect female victims of trafficking, and also are three of the campaigns with a primary or exclusive focus on trafficking for sexual exploitation. The Purple Teardrop campaign utilises black and white close-up images of young women and girls faces crying purple tears. The Euro 08 campaign also depicts female victims through the use of several images showing, firstly, a young woman standing in what could be assumed to be a brothel, secondly, a young woman crying, and thirdly, a man holding up an auction paddle, presumably bidding on a trafficking victim. The Truth Isnt Sexy campaign depicts women but in an entirely different manner. The primary images are designed to look like ads for sexual services, typically found in phone booths and nightclubs. They show womens legs in sexy lingerie and poses, with headlines such as Fancy it, Punish me and Sexy Blonde. The text accompanying these ads tells stories from the first person perspective of women trafficked into the sex industry, finishing with the line, The truth isnt sexy.

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Images of women as victims of trafficking are also dominant in the other campaigns. The Blue Hearts campaign, the Body Shop campaign and the Hidden in Plain Sight campaign all acknowledge in their campaign materials that trafficking victims can be both male and female. However, there is a notable absence of men in their choice of images and stories. The Body Shop imagery focuses on women almost exclusively. While many of their campaign materials simply print a distinctive yellow and pink logo, the images used occasionally and on the website are primarily of young girls, and in one instance of a girl standing behind bars. This image evokes a very conventional understanding of trafficking as a crime in which victims are physically imprisoned. The Blue Hearts Campaign and the Hidden in Plain Sight campaign both explicitly state that victims of trafficking are both male and female, yet the only male victims of trafficking depicted are young boys. Neither campaign includes imagery or prominent narratives of adult male victims of trafficking.

Only three campaigns, ATEST, EU Anti-Trafficking Day and the Blue Blindfold campaign prominently acknowledge and depict male victims of trafficking. Notably, neither the Blue Blindfold campaign nor the ATEST campaign use imagery of victims at all. Blue Blindfold uses images of men and women blindfolded to represent their ignorance of the crime of trafficking, while the ATEST campaign communicates only in text. This leaves the EU AntiTrafficking Day campaign as the only awareness-raising effort using imagery of victims to prominently feature adult male victims of trafficking. In this instance, the images are clearly not of real victims, or even of people who could become victims. Instead, the campaign uses manipulated images of men and women whose skin has grown to cover items such as heels (perhaps to represent the sex industry) and brooms (possibly to represent domestic servitude). All of the images are somewhat disembodied as only body parts (arms, legs) are shown. Of the ten campaigns reviewed, it is the only one to use imagery to draw attention to adult male

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victims of trafficking. However, none of the ten campaigns feature a real or embodied adult male victim of trafficking in their primary, or secondary, images.

The representation of women in trafficking campaigns has been a source of previous criticism. Andrijasevic notes that female figures in trafficking campaigns are often scantily clad and never shown looking towards the audience, reiterating the notion that victims are passive entitites and bodies to be gazed at (2007, 38). This criticism was originally leveled at the International Organisation of Migration campaigns, who responded to the comments by abstaining from the presentation of eroticised pictures of naked, mistreated women (Schatral 2010, 239). It is also a valid criticism of the campaigns analysed in this study, especially with the imagery chosen for the Euro 08 campaign. Another campaign, the truth isnt sexy also depicts women in highly sexualized clothes and poses, though seems to be using this imagery to intentionally juxtapose the objectification of women in commercial settings with the exploitation of trafficking. Similar to the EU Anti-Trafficking Day campaign, the images are disembodied, showing only womens legs.

The favouring of young female subjects for trafficking campaigns also contributes to what Schatral terms as a gender specific and gender hierarchic phenomenon (Schatral 2010, 252). Adult male victims are rendered invisible by awareness campaigns that prioritise young, female victims. This is to be expected in campaigns that only focus on trafficking for sexual exploitation, however this focus alone overlooks male victims of trafficking for other forms of labour. Furthermore, in campaigns addressing a wider range of trafficking, adult males are still largely absent from the narrative, contributing to a discourse where women who migrate become trafficked, while men who migrate simply disappear.

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The construction by campaigns of trafficking victims as typically female, young and vulnerable should not be viewed as unintentional. Rather, these depictions are considered most likely to capture the publics attention, and support. Jahic and Finckeneur argue that human trafficking discourse has surrounded a sympathetic characterisation of victims as young, usually uneducated, willing to move abroad, and attracted by a flashy lifestyle and the possibilities of their dream destinations (2005: 26). Similar comments are echoed elsewhere (OConnell Davidson 2006: 14-15; Pearson 2002; Chapkis 2005), with Jahic and Finckeneur (2005: 27) Doezema (2000) and Chapkis (2003: 931) all arguing that this stereotype has been adopted in order to create a more sympathetic protagonist for the public and policy makers to be moved by. Doezema (2000) argues that the characterisations of victims of sex trafficking as virginal, helpless and childlike, can also undermine the agency of all migrant sex workers and marginalises them by reinforcing notions of female dependence (2000). Doezema also argues that such overly simplistic characterisations of trafficking victims restrict the anti-trafficking movement to a relatively few number of cases that conform to the stereotype of the innocent girl lured or abducted into the sex industry (31-32).

Conclusion This paper has explored research into human trafficking awareness campaigns, and begun an examination of how these campaigns contribute to the publics understanding of this phenomenon. The consistent focus on trafficking for sexual exploitation, and the primary depiction of young, female victims, contributes to a very specific construction of human trafficking. This construction positions sex trafficking as of primary concern, and largely excludes adult male victims from central trafficking narratives. Further research is required in order to examine the possible conflation of prostitution and trafficking in these campaigns,

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the misrepresentation of migrant sex workers in these narratives, as well as the rationale, call to action, and overall impact of these campaigns in relation to the target audience.

References Anderson B and Andrijasevic R (2008) Sex, slaves and citizens: the politics of antitrafficking. Soundings 2008(4): 135-145. Anderson B and Andrijasevic R (2009) Anti-trafficking campaigns: Decent? Honest? Truthful? Feminist Review 92: 151-155. Anderson B (2008) Sex, slaves and stereotypes. Global Networks 8(2): 367-371. Andrijasevic R (2004) Trafficking in women and the politics of mobility in Europe. Ph.D. dissertation, Universiteit Utrecht. Andrijasevic R (2007) Beautiful dead bodies: Gender, migration and representation in antitrafficking campaigns. Feminist Review 86: 24-44. Andrijasevic R (2010) Migration, agency and citizenship in sex trafficking. Hampshire: McMillan Publishers Limited. Augustin L 19 November 2008 (2008c) The shadowy world of sex across borders. The Guardian. Accessed 1 March 2011. Available prostitution Augustin L (2008a) The sex in sex trafficking. LauraAugustin.com. Accessed 1 March 2011. Available at http://www.lauraaugustin.com/the-sex-in-sex-trafficking at http://www.guardian.co.uk/commentisfree/2008/nov/19/humantrafficking-

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Augustin L (2008b) Whats wrong with the trafficking crusade? LauraAugustin.com. Accessed 1 March 2011. Available at http://www.lauraaugustin.com/whats-wrong-with-thetrafficking-crusade Chapkis W (2003) Trafficking, migration and the law: Protecting innocents, punishing immigrants. Gender and Society 17(6): 923-937. Chapkis W (2005) Soft glove, punishing fist: The Trafficking Victims Protection Act of 2000. In Bernstein E and Schaffner L (eds) Regulating sex. London: Routledge. Child Wise and The Body Shop (2010) Stop sex trafficking of children and young people Australian community attitudes report. Commissioned survey report: Victoria, Australia. Doezema J (2000) Loose women or lost women? The re-emergence of the myth of white slavery in contemporary discourse of trafficking in women. Gender Issues 18(1): 23-50. Hames C, Dewar F and Napier-Moore R (2010) Feeling good about feeling bad. Bangkok: Global Alliance Against Traffic in Women. Jahic G and Finckenaeur J O (2005) Representations and misrepresentations of human trafficking. Trends in Organised Crime 8(3): 24-40. McDonnell M R (2007) Case study of the campaign to end Modern-day slavery. Research paper by the US Coalition for Child Survival. Accessed 26 February 2011. Available at http://www.child-survival.org/downloads/toolkit/Case-Slavery.pdf Musto J L (2008) The NGO-ification of the anti-trafficking movement in the United States: A case study of the coalition to Abolish Slavery and Trafficking. Wagadu 5: 6-20. Nieuwenhuys C and Pecoud A (2007) Human trafficking, information campaigns, and strategies of migration control. American Behavioural Scientist 50(12): 1674-1695.
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OConnell Davidson J (2006) Will the real sex slave please stand up? Feminist Review 83: 422. Pearson E (2002) Human trafficking, human rights: Redefining victim protection. London: AntiSlavery International. Pickup F (1998) More words but no action? Forced migration and trafficking of women. Gender and Development 6(1): 44-51. Samarasinghe V and Burton B (2007) Strategising prevention: A critical review of local initiatives to prevent female sex trafficking. Development in Practice 17(1): 51-64. Schatral S (2010) Awareness raising campaigns against human trafficking in the Russian Federation: Simply adding males or redefining a gendered issue? Anthropology of East Europe Review 28(1): 239-267. Segrave M and Milivojevic S (2005) Sex trafficking A new agenda. Social Alternatives 24(2): 11-16. Segrave M (2004) Surely something is better than nothing? The Australian response to the trafficking of women into sexual servitude in Australia. Current Issues in Criminal Justice 16(1): 85-92. Sharma N (2003) Travel agency: A critique of anti-trafficking campaigns. Refuge 21(3): 5365. Stolz B (2007) Interpreting the US Human Trafficking debate through the lens of symbolic politics. Law and Policy 29(3): 311-338.

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Sutherland M (2007) The AusAID Response to Human Trafficking in Southeast Asia. UNEAC Asia Papers No 19. Accessed 26 February 2011. Available at

http://www.une.edu.au/asiacentre/PDF/No19.pdf Tzvetkova M (2002) NGO responses to trafficking in women. Gender and Development 10(1): 60-68. Weitzer R (2007) The social construction of sex trafficking: Ideology and institutionalization of a moral crusade. Politics Society. 35: 447-475.

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Society is Entitle to but One Satisfaction: Ne bis in idem and Jurisdiction Questions in the Gabe Watson Case

Melanie OBrien ARC Centre of Excellence in Policing and Security, Griffith University, Australia

Conference sub-theme: Global Justice, Transborder Crimes and Human Rights

Abstract The case of Gabe Watson, termed by the media The Honeymoon Killer, is well-known in Australia and the US. Watson, an American, was accused of the murder of his wife on their honeymoon while they were scuba-diving on the Great Barrier Reef. He was subsequently convicted of manslaughter, served 18 months in an Australian prison, and was deported to the US. Upon arrival in the US, Watson was extradited from California to Alabama, where he is awaiting trial on charges of murder and kidnapping.

This paper will examine two potential serious human rights violations that the impending trial of Watson presents: ne bis in idem, and extra-territorial jurisdiction. While Australia avoided violating international law by deporting rather than extraditing Watson, the first concern is that the US state of Alabama is seeking to try Watson for conduct he was already convicted of by an Australian court. The second issue is whether a state of the USA has the jurisdiction to try one of their nationals for conduct committed in the territory of Australia. An analysis of this specific case and its charges will be presented in the context of the Australian, US, and international application of extra-territorial jurisdiction and the ne bis in idem principle.

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Keywords: ne bis in idem, extra-territorial jurisdiction, Australia, USA, murder

Introduction In October 2003, Tina and Gabe Watson, two US citizens from the state of Alabama, were on their honeymoon in Australia. They were diving on the Great Barrier Reef when Tina died underwater. Gabe Watson was questioned by Queensland Police, and released to return to the United States. The subsequent investigation into Tinas death resulted in a Coroners Inquest, which determined in 2008 that there is evidence of sufficient reliability on each of these identified matters which, when viewed in the context of all the evidence, satisfy me, that a properly instructed jury, could make a finding of guilt against David Gabriel Watson on a charge of Murder.2 Pursuant to a plea agreement with the Queensland Director of Public Prosecutions, Watson pled guilty to manslaughter and served 18 months in prison in Australia. The plea of manslaughter was based on Watsons admission that he breached his duty to render assistance to his wife (Moynihan, 2009). Upon completion of his sentence, Watson was deported to the United States, where he was then extradited from the state of California to the state of Alabama under capital murder charges.

The case has generated a significant amount of publicity, both in Australia and the US. In the public opinion, there are those who believe Watson is innocent, those who believe he was a coward who should have saved his wife but is not guilty of murder, and those (including Tinas family) who believe that Watson is guilty of murder. It is an emotional case that has provoked strong emotional reactions. However, from a legal perspective, the case of Gabe Watson raises two serious concerns as to the potential violation of Watsons rights, which stem from the apparent view of the state of Alabma that the crime is transnational. The first

2

Inquest into the death of Christina Mae WATSON known as Tina WATSON, Office of the Townsville Coroner, COR 124 of 2003, 24 April 2008 (Coroners Inquest).

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of these concerns is extra-territorial jurisdiction. Does the state of Alabama in the USA have jurisdiction over a crime that was committed within the territory of Australia? The second concern is whether the US prosecution of Watson is a violation of the principle of ne bis in idem (more colloquially known as double jeopardy). Ne bis in idem prohibits the prosecution of a person twice for the same offence or conduct. This paper will examine these two issues of the Gabe Watson case, in the context of the Australian, US, and international application of extra-territorial jurisdiction and the ne bis in idem principle.

Extra-territorial Jurisdiction The first area of concern in the Gabe Watson case is jurisdiction. International law dictates that jurisdiction is primarily territorial (Brownlie, 2008: 299, 301-303; Akehurst, 1972-1973: 152-156).3 This means that a state has jurisdiction over acts carried out within its territory, but does not have jurisdiction over conduct executed in another state. However, it is also accepted that, provided there is no specific rule to the contrary, jurisdiction may be enacted extra-territorially (Akehurst, 1972-1973: 156-166).4 The International Court of Justice (ICJ) has held that [t]he only prohibitive rule... is that criminal jurisdiction should not be exercised, without permission, within the territory of another state.5 In addition, the ICJ found that [t]his discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States.6 There are two circumstances in which a state would seek to exercise jurisdiction for acts which occurred outside the territory of the state which are of relevance in the Watson case.

3 4

The Case of the S.S. Lotus, France v Turkey, PCIJ, Ser. A, No. 10 (1927) (Lotus Case), pp. 18, 20. Lotus Case, pp. 19, 20. 5 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), (Arrest Warrant Case), ICJ, General List No. 121, (2002), Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, para. 54. 6 Arrest Warrant Case, p. 19.

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The first is the principle of nationality jurisdiction (Brownlie, 2008: 303). States reserve the right to exercise jurisdiction over crimes committed by their nationals, even when committed outside their territory. Nationality jurisdiction is generally only enacted in the case of serious crimes, such as murder, treason, war crimes, and genocide. Secondly, states can enact passive personality jurisdiction, when a crime committed results in harm to a national of that state. It has been long regarded as controversial,7 and Brownlie terms this as the least justifiable, as a general principle, of the various bases of jurisdiction (Brownlie, 2008: 304; also Shaw, 2008: 665-6). In the present day, passive personality jurisdiction tends to meet with little opposition, but only in relation to terrorism and international crimes.8

In the Watson case, both offender and victim were American nationals. Hence, the US may argue that they can enact jurisdiction on either the nationality or the passive personality jurisdiction. It is more likely that they would claim to enact nationality jurisdiction over the offender, as that principle is more widely accepted in international law. The application of the passive personality principle has been opposed by the US with respect to crimes committed by US nationals against nationals of other states (Shaw, 2008: 665). However since the late 1980s the US has moved towards acceptance of the principle with regard to US national victims of homicide and physical violence.9 Although this acceptance was targeted to victims of terrorist attacks rather than individual murders, it still provides for jurisdiction over murder and manslaughter of US nationals outside US territory. Extra-territorial application of US laws is usually stated expressly in the specific legislative provision. If there is no express

7 8

Arrest Warrant Case, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, p. 77, para. 47. Arrest Warrant Case, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, p. 78, para. 47. 9 Omnibus Diplomatic Security and Antiterrorism Act of 1986; 18 U.S.C. 2332; United States v Yunis 681 F. Supp 896 (1988), upheld on appeal 30 ILM 463 (1991). Flatow v Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998); ILR 121, 618 and the subsequent Flatow Amendment 28 U.S.C. 1605 note, provide for exceptions to civil jurisdictional immunities of a foreign state for personal injury or death of a US national.

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provision for extra-territorial application, the presumption is generally that the legislation is not meant to be applicable outside of US territory. The US Court of Appeals, Ninth Circuit, has found:

Congress may enforce its laws beyond the territorial boundaries of the United States. (Generally there is no constitutional bar to the extraterritorial application of United States penal laws.). Whether Congress has in fact exercised such power is a question of statutory construction, normally subject to the rule that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States. The territorial presumption is thus based on the common-sense inference that, where Congress does not indicate otherwise, legislation dealing with domestic matters is not meant to extend beyond the nation's borders.10

The only time that the court has determined extra-territorial applicability of legislative provisions is where the legislation implicates concerns that are not inherently domestic, and where American citizens and property need protection, yet no other government effectively safeguards those interests.11 In the Watson case, it cannot be said that the Australian government did not effectively safeguard the interests of the victim, given the extensive investigation that took place and the subsequent conviction and punishment of Watson.

However, these laws enabling the US to enact jurisdiction over someone who has killed a US national are federal laws. Yet, were Watson to be sought by the federal authorities, the extraterritorial applicability of a law proscribing the murder or manslaughter of a US national

10 11

United States v Corey, 232 F.3d 1166. Corey, at 1172 (emphasis added).

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would still not apply. As stated, extra-territoriality of a provision must be expressly stated, and the US Code provisions for murder and manslaughter are expressly limited to those crimes when committed within the special maritime and territorial jurisdiction of the United States.12

Yet it is the state authorities of Alabama that are seeking to try Watson for his crime. Under the Code of Alabama 1975, there is no express extra-territorial jurisdiction. Following the reasoning of the Court of Appeals in Corey, a court could not interpret the crimes of murder and kidnapping under the Code to be applicable extra-territorially, but only to those crimes committed within Alabama territory.

The exception would be if elements of the crime were found to have been committed in Alabama. The Code allows for jurisdiction if the offence was begun in Alabama, but consummated elsewhere (section 15-2-3). Conversely, if elements of the offence were committed elsewhere but the crime was completed in Alabama, section 15-2-4 permits jurisdiction.

Alabama has charged Watson with the offences of capital murder in the course of kidnapping (section 13A-5-40(a)(1)), and capital murder for pecuniary gain (section 13A-5-40(a)(7).13 Murder is prohibited and defined in section 13A-6-2 of the Code, being the causing of death of another person with intent or recklessness. A capital offence is defined as an offense for which a defendant shall be punished by a sentence of death or life imprisonment without parole (section 13A-5-39). The commission of a capital offence while engaged in

12 13

18 U.S.C. 1111(b) and 1112(b). Grand Jury Charge Sheet, The State of Alabama, Circuit Court of Jefferson County, November Term 2010 (Exhibit A to State of Alabama v David Gabriel Watson, State of Alabamas Motion in Opposition to Bail, Case No. CC-2010-3334, Circuit Court of Jefferson County).

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kidnapping or for the purpose of pecuniary gain is also considered an aggravating circumstance (section 13A-5-49).

The charges are based on the belief by the Alabamas Attorney-Generals Office that Watson planned to murder Tina after they were married so he could inherit her life insurance. Prior to their wedding, it is alleged that he urged Tina to change her life insurance policy to have Gabe as her beneficiary (Simpson and Cooke, 2010: 85-86).14 Tinas father claims that amongst the wedding planning, Tina did not have time to do this, and so told Gabe she had done it, but had not. However, it will be a challenge to prove that the crime was begun in Alabama. The motive for the alleged murder may have started in Alabama, but the motive is not an element of the actus reus, which took place entirely in Australia. Similar to the crime of conspiracy being separate from the act conspired to; the planning of a murder by a single person is not the same as the act of murder. In addition, evidence of planning can be difficult to prove, with much of the evidence being circumstantial, which gives rise to the reasonable doubt required for acquittal.

In addition, the Attorney-Generals Office claims that Gabe kidnapped Tina. It remains to be seen how Don Valeska, the prosecuting Deputy Attorney-General, intends to prove kidnapping. There are two kidnapping offences under the Alabama Code. Kidnapping in the second degree occurs when one person abducts another person (section 13A-6-44). Kidnapping in the first degree (section 13A-6-43) is abduction of another person with intent to, inter alia, (3) Accomplish or aid the commission of any felony or flight therefrom. In addition, abduct is defined as To restrain a person with intent to prevent his liberation by either: a. Secreting or holding him in a place where he is not likely to be found, or b. Using or

14

Coroners Inquest, p. 9.

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threatening to use deadly physical force. From this, one can predict that Valeska will present Watson as having kidnapped Tina with the intent to accomplish the commission of a felony (namely murder). However, on reading of these definitions, there appears to be no logic as to how Valeska is going to demonstrate that Tina was abducted. Despite a prior weekend away with another man whilst Gabe and Tinas relationship was on a break, Tina willingly married Gabe and equally freely and intentionally departed to Australia on their honeymoon together. Legally, it seems a stretch to argue that a woman was abducted into her own honeymoon.

However, restrain is also defined:

To intentionally or knowingly restrict a person's movements unlawfully and without consent, so as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved. Restraint is without consent if it is accomplished by: a. Physical force, intimidation or deception15

The kidnapping would thus be presented as abduction defined as restraint accomplished by deception. That is, Watson deceived Tina into going on the honeymoon with him, moving her from the US to Australia, in order to commit the felony crime of murder. Using this argument, Valeska will argue that the deception aspect of the crime occurred in Alabama, and the felony was completed in Australia.

15

Section 13A-6-40; emphasis added.

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This section has demonstrated the clear problems with the exercise of jurisdiction by the US state of Alabama, for a crime committed in Australia. When the case eventually comes to trial, in February 2012, it will be intriguing to examine the arguments put forward by the prosecution. However, given the facts of the case, the exercise of extra-territorial jurisdiction by Alabama is contrivance to extend the law beyond its proper reach. It is the application of law to apply what could be termed social justice, but an application that is far from socially just.

Ne bis in idem The concept of double jeopardy has a long history in various legal systems (Allen and Ratnaswamy, 1985: 806-810). The principle is enshrined in many Constitutions (Bassiouni, 1993: 289), including the United States Constitution (Fifth Amendment). Generally, this application of double jeopardy is used to prohibit the same crime being tried under both federal and state jurisdiction (under the US dual sovereignty principle), and does not apply to the prosecution of the same offence by two states (Cranman, 2000; Costa, 1998: 187; Fisher, 1961).

In the case of Heath v Alabama, the Supreme Court of the United States determined that two states could try a person for the same conduct (Allen and Ratnaswamy, 1985).16 The Court held that each state is a sovereign jurisdiction; because of this, conduct violating the laws of both states amounts to two separate offences. Heath resided in Alabama with his wife. He arranged for his wife to be abducted and murdered. The murder took place across the border in the state of Georgia, where her body was found. Heath pled guilty to murder and was

16

Heath v. Alabama, 474 U.S. 82 (1985).

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sentenced to life imprisonment in Georgia. Alabama subsequently tried Heath for kidnapping with a felony (murder), where he received the death penalty.

The dissenting opinion of Justice Marshall is intriguing. Justice Marshall essentially accuses Alabama of trying to manipulate the justice system to ensure that Heath was executed for his criminal conduct. He also pointed out that the defendant could not receive a fair trial in Alabama, where the majority of potential jurors were aware of the fact that Heath had pled guilty to his wifes murder in Georgia. This seems to be almost the same situation as the Watson case: Watson did not receive a maximum penalty for his actions in Australia, was subject to a guilty plea (for manslaughter), and the case has been highly publicised in the United States (e.g. NBC, 2010; Thompson, 2010). The high level of publicity surrounding the case means that Watson is unlikely to receive a fair trial in Alabama, and the US may be violating the right to fair trial under Article 14(1) of the International Covenant on Civil and Political Rights. In fact, the case has received so much international attention that the case has been postponed due to the Alabama courts inability to finance adequate security for the trial (Velasco, 2011). It may well be that the sentence received and time actually served by Watson is not commensurable to the crime that he committed. Yet this does not render it acceptable to violate Watsons human rights, and to violate basic principles of international law.

Despite the wealth of instruments applying ne bis in idem, there is no international rule of the application of ne bis in idem between countries (Conway, 2003; Morosin, 1995). This is due to the different applicability of the law in different countries, and a view that each state is a separate sovereign which can be individually affected by the same conduct (Bassiouni, 2007: 749). The principle has traditionally been implemented within a country. There is no present

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right erga omnes or jus cogens duty to prevent extradition on the basis of ne bis in idem (Vervaele, 2005: 102). However, the principle is becoming more readily applied between nations. For example, the European Arrest Warrant applies the mandatory principle between the European member states.17 The UN Model Treaty on Extradition contains a ne bis in idem provision as a mandatory grounds for extradition refusal.18 Article 20 of the Rome Statute of the International Criminal Court19 (ICC) applies ne bis in idem, with regard to both prosecutions by the ICC and those by domestic courts. Thus it is clear that the principle is accepted internationally.

A delay in the departure of Watson from Australia after the completion of his sentence was due to Australias concern that if Watson was extradited, he would be subject to the death penalty. Extradition of a person who is likely to receive the death penalty is contrary to human rights obligations. Australia managed to circumnavigate this obligation simply by deporting rather than extraditing Watson. The only extradition was between the state of California and the state of Alabama. However, had Australia extradited Watson, another violation would have occurred, both of Watsons human rights, and of Australias international legal obligations. An examination of what would have happened had Australia extradited may seem odd, but it is relevant in that it demonstrates the recognition and application of the ne bis in idem principle of both Australia and the United States.

The Treaty on Extradition between Australia and the United States of America (Extradition Treaty) contains a provision preventing extradition of a person who has been tried and

17

Article 3(2), Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), Official Journal of the European Communities, L 190/1. 18 Article 3(d), UN Model Treaty on Extradition, GA RES. 45/116, 14 December 1990, amended by GA RES 52/88, 12 December 1997. 19 Rome Statute of the International Criminal Court, 2187 UNTS 90, entered into force 1 July 2002.

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punished for the offence for which his extradition is requested.20 Extradition (and other mutual legal assistance) treaties are based on mutual recognition of the other states/states legal systems, prosecutorial regime, and judicial decisions. Extraditions to and from the United States constitute the majority of extraditions (to or from) undertaken by Australia (JSCT, 2001: 15-16). This indicates a strong mutual relationship and recognition of respective criminal prosecutorial and judicial systems. By seeking to extradite for conduct already tried in Australia, the US would violate this recognition. Had Watson been extradited, Australia would have violated the Extradition Treatys provision prohibiting extradition under ne bis in idem. The principle of pacta sunt servanda provides that treaties are binding, and parties to a treaty will carry out the obligations under that treaty in good faith.21 In undertaking an extradition of Gabe Watson to be prosecuted in the US for the same crime that he has been punished for in Australia, both Australia and the US would have been in breach of treaty obligations, and in so doing undermine the rule of law in each country.

By extraditing under these conditions, the US and Australia also would have violated Article 14(7) of the International Covenant on Civil and Political Rights (ICCPR), which provides that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.22

The Extradition Treaty provision against ne bis in idem prohibits extradition when the person has been punished for the offence for which his extradition has been requested. It may be pointed out that the phrasing of the provision is relevant, as it does not proscribe extradition

20

Treaty on extradition between Australia and the United States of America of May 14, 1974, as amended by Protocol of 1990 (Extradition Treaty), Article VII(1)(a). 21 Article 26, Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, entered into force 27 January 1980. 22 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered into force 23 March 1976.

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on the basis of the persons conduct (which is the term used, for example, in the Rome Statute). This could offer the argument that because Alabama is trying Watson for murder and kidnapping, rather than manslaughter, the provision prohibition on extradition would not apply as the extradition would not have been sought for the same offence. Some case law demonstrates that a strict interpretation of offence will result in a manifestly absurd application of the law. For example, in Sindona v Grant, the Second Circuit endorsed a modified and more flexible test of whether the same conduct or transaction underlies the criminal charges in both transactions.23 That is, if the requesting state seeks to charge a person with a different offence, but an offence based on the same conduct for which the person has already been tried in the requested state, then the offence is non-extraditable. Other case law has preferred an in abstracto approach, focused on the identity of the offence (Conway, 2003: 227). The Australian High Court has held that:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.24

23 24

Sindona v Grant, 619 F.2d 167 (2d Cir. 1980). Pearce v The Queen [1998] HCA 57, per McHugh, Hayne and Callinan JJ, para. 40. Followed in Johnson v The Queen [2004] HCA 15, para. 27; R v Hamzy [2001] NSWCCA 539, para. 103; Blay v The Queen [2006]

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It is clear that case law in both Australia and the USA does not support multiple prosecutions, when based on the same conduct, despite any different formulation of the specific provisions in question (Aughterson, 1995: 119-121). In Watsons case, there are without doubt areas of overlap between the specific conduct required for manslaughter and murder, which would preclude an extradition or a second prosecution. At the same time, this would not preclude the argument that the Alabama provisions include the element of intent (which the manslaughter conviction does not), and the crime of kidnapping as a completely different offence. This is a difficult aspect of the rule of ne bis in idem, not made clearer by the different interpretations in various states around the world (Conway, 2003: 227).

Thus it is demonstrated that Australia and the US do apply ne bis in idem. The principle is applied between the two states as an application of the rights of the person in question, and as a way of establishing finality of judgments,25 which helps to ensure stability in international legal relations by preventing the interminable pursuit of international criminals between jurisdictions (Conway, 2003: 223). It is also applied to reduce the scope for conflicting judicial decisions,26 and to avoid the use of greater resources than necessary for the administration of justice. The latter reason would certainly be applicable in the Watson case, given the cost of the investigation and conviction of Watson in Australia (which included returning him to the US) (Thompson, 2011).

The Alabama courts interpretation of the double jeopardy remains to be seen. In the April hearing for the defences motion to dismiss, based in part of the double jeopardy argument,

WASCA 248, para. 7 (McLure JA) and para. 56 (Buss JA); Alder v The Queen [2006] NSWCCA 158, para. 47; R v Wei Tang [2009] VSCA 182, para. 26. 25 R v Carroll [2002] 194 ALR 1, 21, per Gaudron and Gummow JJ; Arizona v Washington, 434 US 497, 503 (1978). 26 R V Carroll, at 21.

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Judge Nail did not actually rule on the motion. Judge Nail determined that the prosecution has the right to establish jurisdiction through evidence, and that the decision on jurisdiction may not be made until the end of the prosecutions case, during the trial. In the US system, at the end of the prosecutions case, the defence requests a judgment of acquittal based on the states failure to prove its case. As the date of the trial is set for 13 February 2012, it will be some time before there is a court decision to analyse.

Given the present relative ease of extradition logistically, the guarding of a principal such as ne bis in idem is a significant element of global criminal justice. So far, even Judge Nail seems sceptical about the case, reportedly questioning Valeska over the charges: Let me ask you this: didnt they settle the case for manslaughter over there [Queensland] based on some negligence? I assume the prosecutor felt he didnt have the evidence to prove murder Unless prosecutors are in the habit over there of settling intentional acts for negligent acts (Patrick, 2011). This scepticism is no doubt based on the presumption in the Anglo-American legal systems that a final verdict reached after a fair trial is factually correct and morally authoritative, a presumption on which the legitimacy of the criminal justice system rests (Parkinson, 2003: 617).

Conclusion The sentence that Gabe Watson served, 18 months in prison, may not seem fair to some, especially when evidence points to his guilt (and a conviction confirms his role at least partially in Tinas death). The state of Alabama is clearly trying to apply its own social justice in order to reduce crime through more adequate punishment. Alabama is tenuously presenting Watsons crime as a transnational crime, despite the crime being committed within

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the territory of Australia. In a world where crime is rapidly globalising, the designation of crimes as transnational or cross-border should not be taken lightly.

The perceived fairness of the sentence served by Watson in Australia should not result in gross manipulation of the law amounting to a violation of Watsons rights, just to attempt to ensure Watson receives what may be perceived as a fairer sentence, or even justice. Perceptions of justice vary, but it must be remembered that for a justice system to function as a whole, each meting out of individual justice has to be fair. For global justice to be effective there can be no violations of human rights carried out through a desire for personal justice. There is no justice without fairness, which encompasses a recognition and application of the rights of each participant in the criminal justice system, whether they are victim or defendant. As the title of this paper states, society (and the victim) is entitled to but one satisfaction (Bassiouni, 2007: 749), and societys satisfaction over Tina Watsons death has already been sated.

References Akehurst M (1972-1973) Jurisdiction in international law. British Yearbook of International Law 46: 145-258. Allen R J and Ratnaswamy J P (1985) Heath v. Alabama: A case study of doctrine and rationality in the Supreme Court. The Journal of Criminal Law & Criminology 76: 801-831. Aughterson E P (1995) Extradition: Australian law and procedure, Sydney: The Law Book Company Limited.

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Bassiouni M C (1993) Human rights in the context of criminal justice: Identifying international procedural protections and equivalent protections in national constitutions. Duke Journal of Comparative & International Law 3: 235-298. Bassiouni M C (2007) International extradition United States law and practice, New York: Oxford University Press. Brownlie I (2008) Principles of public international law, Oxford: Oxford University Press. Conway G (2003) Ne Bis in Idem in international law. International Criminal Law Review 3: 217-244. Costa J E (1998) Double jeopardy and Non Bis In Idem: Principles of fairness. UC Davis Journal of International Law & Policy 4: 181-200. Cranman E M (2000) The dual sovereignty exception to double jeopardy: A champion of justice or a violation of a fundamental right? Emory International Law Review 14: 16411679. Fisher W T (1961) Double jeopardy, Two Sovereignties and the intruding constitution. The University of Chicago Law Review 28: 591-613. JSCT (August 2001) Extradition - a review of Australia's law and policy, Canberra: Joint Standing Committee on Treaties. Morosin M N (1995) Double jeopardy and international law: Obstacles to formulating a general principle. Nordic Journal of International Law 64: 261-274. Moynihan T (9 June 2009) QLD Director of Public Prosecutions press release. NBC (19 November 2010) Official: Australia extorted Alabama in scuba death case. NBC Today http://today.msnbc.msn.com/id/40246395/ns/us_news-crime_and_courts/40273302.
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Parkinson C (2003) Double jeopardy reform: The new evidence exception for acquittals. UNSW Law Journal 26: 603-621. Patrick P (22 April 2011) Death at 27 metres. Sydney Morning Herald

http://www.smh.com.au/world/death-at-27-metres-20110421-1dqgf.html. Shaw M N (2008) International law, Cambridge: Cambridge University Press. Simpson L and Cooke J (2010) Honeymoon dive: The real story behind the tragic honeymoon death of Tina Watson, Sydney: Macmillan. Thompson T (20 November 2010) Gabe Watson's lawyer, Brett Bloomston, faces off with Alabama Attorney-General Troy King over his client's charges. Courier Mail. http://www.couriermail.com.au/news/gabe-watsons-lawyer-brett-bloomston-faces-off-withalabama-attorney-general-troy-king-over-his-clients-charges/story-e6freon6-1225956952099 Thompson T (14 June 2011) "Honeymoon killer" Gabe Watson has ignored a $35,000 bill from the Commonwealth for the cost of removing him from Australia last year. The Courier Mail Velasco E (2011) Alabama budget crunch leads Jefferson County judge to postpone Gabe Watson's capital murder trial. The Birmingham News http://blog.al.com/spotnews/2011/04/alabama_budget_crunch_leads_je.html. Vervaele J A E (2005) The transnational ne bis in idem principle in the EU mutual recognition and equivalent protection of human rights. Utrecht Law Review 1: 100-118.

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Policing, Investigation and Intelligence in Social Democracies

Educating Police Recruits for Democratic Policing

Corresponding author: Christine Jennett School of Humanities and Social Sciences, Charles Sturt University67 Johnston Pde, South Coogee, NSW, 2034 Email: cjennett@ozemail.com.au

Mir Rabiul Islam School of Psychology, Charles Sturt University

David Bull School of Humanities and Social Sciences, Charles Sturt University

Rosemary Woolston School of Policing Studies and Graduate School of Policing Studies, Charles Sturt University

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract Charles Sturt University has been an international trailblazer in the university model of police recruit education. In collaboration with the NSW Police Force (NSWPF), it provides two university pathways into the force. This paper discusses some findings from a three year study of students enrolled in these two programs. It examines their attitudes to their chosen career at entry and again after they have been on field placement in a police station. Using the

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framework provided by Wengers (1998) theory of communities of practice it examines the ways in which policing and academic communities of practice work together, at times in tension, at times in complementary ways, to produce the generational change and then cultural change in NSW policing observed by Chan and Dixon (2007). The change to a new professional, university-level training program was recommended by the Wood Royal Commission. This study explores the resulting engagement of police recruits simultaneously with industry and academic communities of practice and provides a snapshot of the early stages of this process.

Introduction Decisions by police officers are likely to have profound implications for the people with whom they come in contact and for the officers themselves. They often affect peoples liberty and personal safety. Some decisions determine whether people citizens and officers live or die (Haberfeld 2002: 4).

Officers decisions have profound importance for peoples human rights, they are well placed to see that these rights are upheld but, equally, to allow them to be undermined, or to undermine them themselves. Australia is a member of the Commonwealth which has

developed training manuals for those who educate police officers in member countries (Commonwealth Secretariat 2006; 2005). The focus of these manuals is to make officers aware of their obligations under the international human rights framework. The Australian Human Rights Commission (AHRC) works with police to develop better police community relations (Harvey et al. 2010).

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Key to an officers role in upholding or undermining human rights is the officers use of her/his discretion, i.e., indeed, which law to enforce in some circumstances (Miller 1996; Lustgarten 1986). The concept of police culture (Reiner 2000) and, in particular, of categories of people viewed as police property has been the subject of study over the past forty years as policing organisations struggle to reorient their approaches to be more professional, democratic and customer oriented (Leishman et al. 2000; Walklate 2000).

In addition to the human rights argument about the need for democratic policing, Braithwaite has argued similarly and persuasively from a republican theoretical perspective. He argues that the goal of the criminal justice system should be to maximise the dominion of citizens (Briathwaite 1992: 12). Distinguishing between good police services and bad police services he argues that fear of crime and fear of the power of the state to punish capriciously both threaten freedom (Braithwaite 1992: 13). He emphasises that police

services can be the most important institutional guarantee of dominion or the greatest institutional threat to freedom. The good police service upholds citizens dominion; the bad police service undermines it.

Casey (2010: 175) states that the objective of democratic policing is to promote policing that respects the rule of law, serves the interests of a wider community instead of only those of the government or a powerful elite, and does not abuse citizens with violent force or arbitrary detentions.

As a result of the recommendations of commissions and inquiries in Queensland (Fitzgerald 1989) and NSW (Wood 1997) police services have experimented with university education of police recruits (Wimshurst 1992; Jennett & Bull 2006). Queensland has not been as

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consistent or thoroughgoing as NSW in this regard. Anecdotes from former Queensland officers with recent service experience suggest that while officers are held accountable for financial corruption, a blind eye is turned to the excessive use of force (personal communication 2010). Several events in the last decade reinforce the suggestion that excessive use of force continues to undermine the human rights of people in police custody (Street 2005; Queensland Courts 2006; Bentley 2011). Further, those officers who have been university trained are reportedly derided and referred to as muppets, clearly not real police officers.

By contrast, NSWPF has entered agreements with two universities to ensure that all officers receive at least some university education. Haberfeld (2003) draws our attention to the importance of who teaches. Who teaches and trains [is one of the factors] which will shape the future of law enforcement and determine the extent to which officers will be able to respond to an increasing array of complicated and sophisticated problems (Haberfeld 2002: 13). Mitchell and Jennett (2004) have argued that, while Lusher (1981) and Wood (1997) advocated university education of police recruits to add a more inclusive, complex and diverse approach to what they learn to combat the us vs. them mentality of police culture, there has been a tendency for universities to recruit former police (academically trained) to run these courses, thus lessening the diversity of experience which these measures were designed to ensure.

The Courses Charles Sturt University (CSU) and the New South Wales Police Force (NSWPF) collaborate in providing two entry pathways into NSWPF. The principal path is through the Associate Degree in Policing Practice (ADPP), which is taught at the NSW Police College campus at

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Goulburn, principally by CSUs School of Policing Studies. The second entry path is through the Bachelor of Justice Studies (Policing) (BJS(P)), which is a 3 year degree, the first 2 years of which are taught on CSUs Bathurst campus by staff from the School of Humanities and Social Sciences (H&SS), with the final year consisting of the major part of the ADPP, taught through the Police College at Goulburn (Jennett & Bull 2006).(1) The ADPP is marketed to those who are sure they want a policing career, targeting people with life and work experience. The BJS(P) is marketed to school leavers, who are too young to enter the ADPP or who are unsure that policing really is the career for them.

The Studies Since 2006 we have conducted three research studies with students enrolled in these two recruitment programs which, while not comprising a longitudinal study of the one group of students, do provide snapshots or cross sections of students at different points in their studies, in both the BJS(P) and the ADPP. We will provide an overview of our findings from two of these studies here and discuss their significance for the future of democratic policing in Australia. First, in 2006-2007 we examined the students motivation to join the NSWPF, their identification with the policing profession, and their reasons for choosing their entry path into the NSWPF. Second, in 2009 we compared the attitudes of students in the pre and post field placement phases of their degree to see whether this experience caused them to reassess their earlier attitudes to their chosen profession. In this study we examined the influence of the field placement as a rite of passage into policing and the challenges experienced by students as they engaged with two main learning communities (Wenger 1998), the academic community of practice and the police community of practice both of which are mediated by the social community of their peers. Previously noted was Chan and Dixons (2007) statement that recruits being educated in this way are promoting generational and cultural

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change in the NSWPF in the direction of more accountable and therefore democratic policing. In such a policing style police uphold the human rights of those with whom they come in contact as they carry out their daily policing duties. In Braithwaites republican terms, the aim of this education process is to develop a police service which is an institutional guarantee of citizens dominion.

Occupational Identity Occupational identity conveys an understanding of how people compare and differentiate themselves from other professional groups (Tajfel & Turner 2001). The initial years in any profession can be critical years. It is the time when recruits develop their occupational identity by sharing attitudes, values, knowledge, beliefs and skills with others in the defined group, and relating these to their professional role. It is a time of developing working models, through self-analysis in group-based circumstances, that can carry the recruit through his/her entire career (McGowen & Hart 1990). Thus, van Knippenberg & van Schie (2000: 138) postulate that this conception of the self as a group member provides a basis for the perceptional, attitudinal and behavioural effects of group membership.

Published research on the relationship between recruits expectations of policing, their identity as police, and their experiences of police education and training is limited in Australia. Chans mid 1990s study (Chan et al. 2003) of recruit education and socialisation in NSW indicated that police recruits begin their training with high expectations and lofty ideals. This was consistent with Fieldings (1988) earlier study of British police forces. Chan et al. (2003:112) also found that after the first period of placement in police stations, recruits began to transfer their allegiance to the field of operational policing, building social capital as police officers. However, it should be noted that Chans study is primarily focused

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on the transition from the Police College to operational policing, and, also, there have been substantial changes in police education in NSW since then.

The expectations that recruits bring with them are important to whether or not they continue in a policing career. Harr (2005: 431) examined reasons why US recruits drop out within the first 16 months of their policing careers and found that resignation was self-initiated, academy-initiated, or department-initiated. According to Haar (2005: 231) [r]ecruits who self-initiated resignation experienced a conflict between the version embodied in their ideal and the reality of policing in practice. Research has shown that occupational identity, a strong desire to belong to the police family (Sato 2003) and job satisfaction are important factors in lessening the attrition rate in policing (Lynch & Tuckey 2004; Victoria Police 2002).

In the first study we surveyed ADPP and BJS(P) new entrants and second year BJS(P) students pre and post practicum.(2) With reference to occupational identification of new entrants the survey included a group of questions about identification with the policing profession. The first of these asked whether they wanted to become a member of the NSW Police Force. Unsurprisingly, 81.4% of BJS(P) entrants strongly agreed with this statement, 15.3% agreed but 3.4% were unsure. Of the ADPP entrants a slightly higher proportion (88.5%) agreed strongly with the statement and a lesser proportion merely agreed (9.8%) or was unsure (1.6%). This is to be expected because those entering the ADPP are only giving themselves the option to enter the NSWPF, whereas those entering the BJS(P) are entering a longer developmental trajectory and they have the option to transfer to the Bachelor of Social Science (Criminal Justice) (BSS (CJ)) should they decide that NSWPF is not for them. It

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should also be noted that some who decide the BJS(P) is not for them transfer to the ADP or aim for the Australian Federal Police after completing the BSS(CJ).

We asked the entrants whether they had always wanted to be a police officer? Of BJS(P) entrants 61% answered yes to this question as did 73.3% of ADPP entrants. We then went on to explore what had made them want to become a police officer? Responses covered three categories of motives: (i) personal motives career, variety, lifestyle; (ii) social motives making a difference, in the community, helping others; (iii) experience family/friends, TV role models, positive encounters with police.

Personal motives were the most important for all groups, although these were often combined with social motives (e.g. a rewarding career where I could make a difference and help others). The ADDP entrants were slightly more likely than BJS(P) entrants to have personal motives (40.9%, compared to 36.1%) and positive experiences of policing (15.9% compared to 12.8%).

We expected that the ADPP entrants might have a stronger police occupational identity score but this proved not to be the case and there was no significant difference between the entrants to the two courses. This may be explained by the likelihood that ADPP recruits want to take the shorter course in order to start or return to paid employment as quickly as possible. As previously noted, most have already been in the workforce, so study would most likely result in a drop in income for them. This also means that they have made a conscious decision to change career. Our data does indicate that a high proportion have always wanted to be police officers and, having the chance to do so, a high proportion want to do it quickly. BJS(P) students put a higher priority on social goals, at least at the point of entrance. Our data also

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show that they want options for future careers and that the desire for options increases with the experience of the practicum. There is also the practical issue, which we mention

elsewhere, of being too young to be accepted directly into the ADPP.

Reasons for Wanting to Become a Police Officer The first point to make is that students want to become police officers for a variety of reasons. Second, three items emerged as most important, as discussed below. Third, a secure job with good conditions was not a critical factor for most students. (Respondents could give more than one reason).

The most frequent reason given was that policing offers variety, opportunity and an active lifestyle. Overall, 23.2% cited it, with very similar results for males (23.7%) and females (22.5%). Although these results have not been linked directly with occupational identity, as educators we have noted consistent references to these characteristics of policing when students in class have discussed their reasons for wanting to become a police officer. As many researchers on police work (e.g. Reiner 2000) have found over decades of research, this is a strong characteristic of the occupational culture.

The second most important item was wanted to pursue a rewarding career where I could make a difference and help others. While a similar proportion (21.0%) gave this reason, there was a noticeable difference between males (18.9%) and females (24.5%). This study showed the importance of social motives for commencing students, and in this case the difference between males and females perhaps reflects gender roles in social life generally. Research in the USA by Lord and Friday (2003: 73) has concluded that male students responded with higher self-efficacy expectations for their ability to handle police functions

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than female students. Therefore, they argued that it would make sense to recruit males and females with similar (androgynous) sex-role identification and that this could help prevent gender role conflict that women particularly may experience when working in a nontraditional field such as law enforcement (Lord & Friday 2003: 77). Such an aim would appear to be likely to neutralise the special contributions which women can make to policing by drawing on strengths which characterise positive aspects of traditional female socialisation.

The third most significant item, wanted to be involved in improving the community, although noted by a somewhat smaller proportion of respondents (12.7%), provides further support for the suggestion that social motives are significant factors in the decision making of prospective students to become police officers.

This study demonstrated that the entry path does not appear to be an indicator of strength of policing occupational identity as both ADPP and BJS(P) entrants identified strongly with the policing occupation (Jennett et al. 2008). It also showed that students in the BJS(P) consider their long term career options and likely progression in policing when they choose their entry path. Subsequent surveying of BJS(P) students in the post practicum phase in second year suggested that those who were highly committed to the occupation in the first place are likely to complete their studies.

Qualitative findings from the second study, which was conducted in 2009 and focused on the role of the practicum (field placement) in the students developing occupational identity, will now be discussed. In NSW the University model of police recruit education requires recruits to maintain their motivation over 2.4 years of on-campus study (Jennett et al. 2009). For the

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BJS(P) maintaining their connection with and motivation towards their chosen career is a factor in the design of a practicum in the middle of the students second year of study. The practicum also provides a reality check for those whose idea of a police officers work is gleaned mostly from television. In this study we examined the reactions of a group of second year policing students to their experiences during their practicum.

Wenger (1998:10) argues that learning and knowing involve primarily active participation in social communities. Whilst on-campus the students experience the academic community of practice and peers. Whilst in the field they experience the policing community of practice. Some already have friends or family who are police officers and derive at least some of their expectations of their chosen career from the field indirectly through these sources. So they are indirectly participating in the police community of practice. However, in the main the influences on them in first year and the first half of second year are from their teachers (university academics) and their peers. In this context the practicum becomes a rite of passage. Those who survive, return with increased enthusiasm for their chosen profession and impatience to practice it.

Our second study surveyed forty second year students towards the end of first semester, just prior to the field placement/practicum. Both open ended and closed questions were used in the survey. Unusually, (as compared to previous years) only a minority of these students qualified (i.e. passed their Professional Suitability Assessment (PSA) to go on field placement. Further, post practicum fifteen students were surveyed and participated in a focus group (constituting three quarters of those who went on the practicum). While in the field the students become immersed in the policing community of practice (the field) characterised as it is by adherence to standard operational procedures and an occupational culture (Chan 2001;

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Westmarland 2008; Rowe 2000; Reiner 2000) which assists officers to cope on a day by day basis with the challenges of policing in NSW. Campbell (2007: 142) has also used the concept of community of practice to analyse the position of early career police (first three years) in the NSWPF as they shift from being outsiders to insiders in policing, or in Lave and Wengers terms from being legitimate peripheral participants in the community of policing practice to full members. At the practicum stage the students have an even more peripheral status.

Wenger (1998: 140) argues that learning takes place within a regime of competence. Each community of practice has its own such regime. The NSW Police Force, like other police organisations, has its regime of competence, consisting of understandings about the way police go about their work and the nature of various categories of non-police, somewhat of an us versus them mentality. Wood (1997) thought that this regime of knowledge needed to be opened wider, to experience challenges to its understandings which would be achieved by constructive engagement with the university sector, where other regimes of competence were to be found.

Wenger argues that:

To say the concept of knowing is not defined outside a regime of competence is not to say that boundaries cannot be crossed [they can] But that can take place only when participants are able to recognize an experience of meaning in each other and to develop enough of a shared sense of competence to do some mutual learning (Wenger 1998: 140).

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Wenger (1998: 140) argues that learning depends on certain relations locality, proximity, distance. He argues that learning is impaired when experience and competence are too close and also when they are too distant. Under these conditions they do not pull each other (i.e. engage with each other).

Crossing boundaries between practices [such as policing and universities] exposes our experience to different forms of engagement, different enterprises with different definitions of what matters, and different repertoires when even elements that have the same form (e.g. the same words or artefacts) belong to different histories. By creating a tension between experience and competence, crossing boundaries is a process by which learning is potentially enhanced, and potentially impaired (Wenger 1998: 140).

Many students who have chosen the full degree path into policing find themselves oriented towards a policing regime of competence but experiencing, in the first year almost exclusively, an academic regime of competence. Some struggle (or dont struggle!) to see the relevance of psychologys concerns with individuals motivations and behaviours; sociologys focus on group behaviour, which produces social structures which are key to social control and social stability, and to social movements which burst these structures asunder to produce social change; and criminology which focuses on various explanations of why people commit crime, especially the structures of social inequality which frustrate them in achievement of their lifes desires. In a sense, the universitys regime of competence is made up of many disciplinary regimes of competence. Therefore, it is difficult for some students, who see themselves as needing to learn practical policing skills and becoming physically fit enough to pass their Professional Suitability Assessment (PSA), to appreciate

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the concepts, images, classification schemes, theories which predict human behaviour under specified circumstances and can help them to understand it, which the university curriculum makes available to them. In the words of one student, we should be taught common sense, and another, practical subjects.

Wenger argues that

Because learning transforms who we are and what we can do, it is an experience of identity. It is not just an accumulation of skills and information, but a process of becoming We accumulate skills and information, not in the abstract as ends in themselves, but in the service of an identity. It is in that formation of an identity that learning can become a source of meaningfulness and of personal and social energy (Wenger 1998: 215).

Police recruits who study for a degree at university are in the process of achieving the identity of a professional police officer. Some understand, as Wood desired they should, that crossing regimes of competence, between those which are to be found in the university sector and those which are to be found in policing, is a stimulating experience which should energise students in the short term, and produce more open minded, tolerant police, whom people should find approachable, in the longer term. Class presentations, debates and so forth may even give them loud, confident voices. These are all skills identified by students who participated in the focus group for this study.

On the other hand, there were frustrated students who did not appear to understand this process of cross stimulation of regimes of competence, who demanded common sense,

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practical subjects, specific knowledge and skills they can use on the job. For these students, the university does not appear to have engaged their experience, their past histories, in the way Wenger says is necessary for learning to occur. One student says this is a process which is necessary to weed out the dummies but sometimes the dummies are merely those who have yet to understand the relevance of what they are learning. Providing a space where they can make connection with the academic community of practice is the challenge for university educators.

Conclusion Students experience of the practicum in the middle of the second year of the BJS(P) has been argued to be a rite of passage during which they experience a reality check on the fit between their expectations of their chosen career and the daily role of a police officer in the field. They also get an opportunity to decide whether they are suited for what they find, whether it is consistent with their expectations or not. Moreover, it is the point at which they have a firsthand chance to participate in the policing community of practices regime of competence. They observe what is known and valued in the regime of competence of operational policing. Much of what they learn highlights the contrast between practical knowledge (valued) and abstract knowledge (derided or, at least, undervalued). When they return to the university they are bonded as a group in which some have mentally already left the university and are impatient with what they are learning. This is especially the case when they were advised in the field by police officers that policing degrees dont have value, even if other degrees do. While they are embraced by some, the universitys regimes of

competence may be derided or resented by others at this point, but whatever the students perspective about their university experiences, their eye is on the prize:

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[It is a] reward to know at the end of the day you made a difference and saved lives (Male 19 yrs).

Hopefully, enough recruits will be able to maintain this goal when they enter NSWPF and continue to regenerate it from within in the direction of Braithwaites good police service.

Endnotes 1. The BJS(P)s predecessor, the Bachelor of Social Science (Justice Studies Policing), was introduced in 1993 and involved three years of study at CSUs Bathurst campus until 2001. It subsequently went through two name changes and the university campus study was cut to two years. Also, as of 2010 debriefing from field placements now takes place at the Police College, not the university campus.

2. Methodology: A cross-section of policing students from the following four subgroups were surveyed: (1) new entrants into the Bachelor of Justice Studies (Policing) (BJS(P)); (2) new entrants into the Associate Degree in Policing Practice (ADPP); (3) second year BJS(P) students pre-practicum (i.e. police station placement); and (4) BJS(P) post-practicum students. The students were surveyed about: (i) their identification with the policing profession (ii) their reason for choosing policing (which helps establish the sources of their identification), and (iii) their reason for choosing their specific course (BJS(P) or ADPP) as an entry path. Policing identity was measured using a scale adapted from Brown et al. (1986). For purposes of analysis, the results from responses to seven questions were collapsed into a single identity score. Each question was answered on a 5 point Likert scale. Internal

consistency reliability was checked to form a consolidated scale for occupational identity (Cronback Alpha = .79).

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References Bentley A (2011) Ex-cop loses bashing appeal. BrisbaneTimes.com.au. May 6. Braithwaite J (1992) Good and bad police services and how to pick them. In: P Moir and Eijkman H (eds) Policing Australia: Old issues new perspectives. South Melbourne: Macmillan. Chan J (2008) Police culture: A brief history of a concept. In: T Anthony and C. Cunneen (eds) The Critical criminology companion. Sydney: Federation Press. Chan J and Dixon D (2007) The politics of police reform: Ten years after the Royal Commission into the New South Wales Police Service. Criminology and Criminal Justice 7(4): 443-468. Chan J (2001) Negotiating the field: new observations on the making of police officers. ANZ Journal of Criminology 34(2): 114-133. Chan J B L, Devery C and Doran S (2003) Fair cop: Learning the art of policing. Toronto: University of Toronto Press. Commonwealth Secretariat (2006) Commonwealth manual on human rights training for police. Marlborough House, London: Commonwealth Secretariat. Commonwealth Secretariat (2005) Human rights training manual for West African police. Marlborough House, London: Commonwealth Secretariat. Fitzgerald G E (1989) Commission of inquiry into possible illegal activities and associated police misconduct. http//www.cmc.qld.gov.au/index.asp?pgid=10877 Haberfeld M R (2002) Critical issues in police training. Upper Saddle River, New Jersey: Prentice Hall.

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Haar R N (2005) Factors affecting the decision of police recruits to drop out of police work. Police Quarterly 8(4). Harvey R, Hogg R and Bull M (2010) Building trust, working with Muslim communities in Australia: A review of the community policing partnership project. Australian Human Rights Commission. http//www.hreoc.gov.au/racial_discrimination/publications/police/index.html Jennett C, Islam M R, Bull D and Woolston R (2010) Policing for the future: The recruits view. September 28-30, Alice Springs: ANZSOC Conference. Jennett C, Islam M, Bull D and Woolston R (2008) Occupational identity of police recruits. In: Australian collaborative education network work integrated learning (WIL). Transforming futures: Practice...pedagogy...partnerships. WACE-ACEN 2008 E-Proceedings.pdf. Jennett C and Bull D (2006) A model of police recruit education within a university environment. Conference proceedings of the continuing professional education conference. L. Beddoe and J. Jesson (eds). The University of Auckland, New Zealand. Refereed conference publication. Jennett C, Islam R and Bull D (2009) The Policing Practicum as a rite of passage. November 22-25, University of Western Australia, Perth: ANZSOC Conference. Jennett C, Islam M, Bull D and Woolston R (2008) Occupational identity of police recruits. Canberra, November: ANZSOC Conference. Lusher Mr Justice (1981) Report of the Commission to Inquire into the New South Wales police administration. Sydney: NSW Government Printer. Lynch J and Tuckey M (2004) Understanding voluntary turnover: An examination of resignations in Australasian police organisations. Adelaide: Australian Centre for Policing Research, 143.1.
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McGowen K R and Hart L E (1990) Still different after all these years: Gender differences in professional identity formation. Professional Psychology: Research and Practice 21:118-123. Mitchell M and Jennett C (2004) The collaborative imagination and the mantra of 'relevance'. University House, Australian National University, Canberra, March: Continuing Professional Education 2004 Conference, Beyond Your Comfort Zone. Queensland Courts (2006) Findings of the state coroner: Inquest into the death of Mulrunji. Available at http://www.courts.qld.gov.au/mulrunji270906.pdf Reiner R (2000) Cop culture. In Reiner R The politics of the police (3rd ed). Oxford: Oxford University Press. Sato M (2003) Police recruits training and the socialisation process: From the network perspective. The Police Journal 76: 289-303. Street L (2005) Palm Island death in custody Cameron Doomadgee. Report by Sir Laurence Street, ACKCMG QC. Tajfel H and Turner J (2001) An integrative theory of intergroup conflict. In: Hogg M A and Abrams D (eds) Intergoups relations: Essential readings. Philadelphia: Psychology Press. Van Knippenberg D and van Schie E C M (2000) Foci and correlates of organisational identification. Journal of Occupational and Organisational Psychology 73: 137-147. Victoria Police (2002) Lowest attrition rate in 10 years. The Gazette: 15. Wenger E (1998) Communities of practice: Learning, meaning and identity. Cambridge: Cambridge University Press. Westmarland L (2008) Police cultures. In Newburn T (ed) Handbook of policing (2nd ed.). Cullompton, Devon: Willan publishing.

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Wimshurst K (1991) Entering justice careers: Expectations and experiences of students entering a new Bachelor of Arts in Justice Administration degree programme. In Bull D (ed) Proceedings of the 1991 Conference of the Australasian Association of Criminal Justice Educators. Bathurst: Centre for Social Justice Studies/School of Social Sciences and Welfare Studies, Charles Sturt University. Wood J R T (1997) Royal Commission into the New South Wales police service. Sydney: NSW Government Printer.

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Image Work(s): Simulated Policing and the New Police (Popularity) Culture

Murray Lee University of Sydney

Alyce McGovern University of NSW

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract The growth in police public relations has seen Policing organisations become increasingly savvy at projecting preferred images of police work through both the old and new media. This image work (Mawby 2001) comes as a response to a number of modern policing and political challenges and opportunities such as the public fear of crime, reform agendas, the crisis in policing consent, and the withering old media such as newspapers and a proliferation of new media, social media and citizen journalism. With a growing body of international research pointing to the need for policing organisations to foster public confidence and organisational legitimacy through the practice of procedural and distributive justice (Tyler 2006, Jackson and Sunshine 2007; Hinds and Murphy 2007) much less research has looked at public confidence in the context of police PR or media. Based on qualitative data from a research project which includes interviews with key uniformed and civilian directors of police PR in Australia and observations of police-media operations, this paper explores how PR directors in the Australian Police Forces conceive the links between image work, public confidence in the organisation, and police legitimacy.

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Introduction This paper identifies emerging forms of police image work (Mawby 2002) that we argue also operate as simulated policing (OMalley 2010). This policing takes place not on the beat, or in the patrol car, or even at the station. Rather, the policing we identify here occurs in virtual cyber-spaces, on tele-visual observational documentaries, and through the lens of the police digital video camera as reproduced on the daily news bulletin. Yet while these the forms of simulated policing rely on a swathe or new technologies, they are traditional in nature. That is they generally seek to achieve traditional goals of public policing.

Using qualitative data from research interviews with key public relations professionals with NSW and WA Police, we argue that policing and its relationship with the media and the public is undergoing significant change and that many contemporary images and representations of policing, are policing. Policing organizations are putting representations to work for them in ways that not only aim to improve their corporate image, but which seek to increase the legitimacy of the organization, deter potential offenders, and increase public compliance and cooperation. In the process this new police popularity culture has resulted in the line between policing, the media, and popular culture becoming increasingly blurred and fluid.

Police Popularity Culture Criminology has long discussed and researched policing cultures (Chan 1997). Likewise, images and popular media representations of policing have been long-standing topics of interest (Reiner 2003, Manning, 1999). Moreover, there has been significant research on the relationships fostered between news journalists and police (Freckelton 1988; Surette 2001; Mawby 2002; 2010). However, the place of policing as knowledge brokers (Ericson and

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Haggerty 1997) within media discourse and public representation has, for the past decade or so, been going through a significant transformation. Only now are we beginning to understand the scope and shape of that transformation. The changes to which we refer are not simply a rebirth of police media relationships. Rather, we are in a period where police media public relationships are liquid, continually shifting, folding in on themselves. Policing, news, and popular culture are colliding, feeding off themselves, being reproduced and re-presented in ways Baudrillard (1983) could only imagine 30 years ago. Welcome to the new police (popularity) culture where Scotland Yard employs ex News Corporation staff to manage their media profile and public relations, where (supposedly) routine policing becomes entertainment, and where the police organizations are popular twitter and Facebook friends. To paraphrase Ferrell et al (2008:81), criminology needs to make sense of the blurred line between the real and the virtual where mediated processes of cultural reproduction constitute the experience of crime, self and society under conditions of late modernity.

We live in an historical moment where image is paramount. While image has always been important for the legitimation of policing organizations (Emsley 1983; Reiner 2010) there is now a significant difference in the ways in which images are produced and circulated. While the examples we give here are certainly not exhaustive, three recent developments in policing strategies are illustrative of these changes:

1. Police engagement with social media twitter, facebook, youtube, and blogs; 2. Increasing police engagement with reality television so called ob docs or observational documentaries; 3. The increase of police multi-media units or what are essentially in-house television production facilities.

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Add to this the expansion of police media units/offices over the past 20 years and what we see is the development of a new police public relations apparatus the likes of which would have been unthinkable even 10 years ago.

We and others have argued elsewhere that in many ways this expansion is not so surprising (McGovern and Lee 2010; Lee and McGovern forthcoming; Mawby 2002). After all, police agencies have also come under increasing observation from a population and media hungry for stories and information about crime, and a 24 hour media cycle hungry for images, stories and print. Add to this the explosion of citizen journalism and the police are perhaps the most watched organization in the world in a panoptic synoptic relationship the likes of which has been outlined by Mathieson (2007); that is while the few watch the many the many also watch the few. It is not just the size of the expansion of that the police public relations apparatus that is significant, it is its form.

Simulated Policing Pat OMalley (2010) has recently outlined what he argues are new forms of simulated justice he also refers to simulated governance and simulated policing. This is a form of governance operating at the level of the bar code reader at the supermarket, the freeway, the passport gate, the ATM, the baggage carousel, all exist to govern and police without touch, and thus to maximize good desired - circulation and interfere only with bad circulation (2010: 796-797). This governs distributions and complements individual discipline and simultaneously expands the reach of policing while at the same time reducing its unit cost and visibility, and minimizing the friction imposed upon good circulations (2010: 797).

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Quite obviously the policing techniques to which we refer here are quite different to that outlined by OMalley. We are not looking at a growth in telemetric policing, or indeed a reduction in the visibility of policing; quite the opposite. However we want to identify a simulated form of policing that we believe has grown in chorus to the simulated processes and strategies outlined by OMalley, and one that also relies on a swathe of new technologies.

The simulated policing to which we refer means a number of things but first and foremost it refers to the fact that policing is increasingly occurring at the level of the policing image. While the Peelian model of policing has always relied on the image and representation of policing to legitimate the institution of the police (Emsley 1983; Reiner 2010), the difference is that now the representation of policing, is policing or at least an operational simulation of traditional policing. The image not only represents policing, but increasingly the image of policing and operational policing are inseparable they are, for all intents and purposes, the same thing. This is not the loss of the referent, in the Baudriardian (1983) sense, there is little doubt that policing is happening; rather policing is occurring through often disembodied image work and image work is occurring though policing.

The second point about simulated policing is that those engaged in its production and reproduction believe in its authenticity, its operational utility, and its capacity to increase confidence in policing and the legitimacy of the police organization. Simulated policing is not just about (re)presenting images of police work although it does this too rather policing operates virtually. So this simulated policing is more than a cynical attempt at spin produced by increasingly professional and savvy public relations units although it most certainly is this at times. Rather, it insinuates itself into the public conscience through an ever increasing number of virtual media formats.

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The third point about simulated policing is that it has a potentially almost unlimited public reach much as OMalley (2010) identifies in the simulated policing practices to which he refers. Where traditional public policing is temporally and spatially confined to public spaces and private spaces in particular circumstances, the continuous 24 hour cycles of shifts, and the limitations of staffing levels, simulated policing enters the private and public spheres through the internet, the television, the phone application, the tablet or iPad. It is not big brother watching, its rather more like a continuing reminder that police are there on your behalf if you are law abiding, that you can interact with them, and that they are doing, well, something as one head of police public affairs told us. Watching, interacting and being entertained by policing (the synopticon) simultaneously operates as a form of bio-power aimed at regulating (a form of panopticon) (Foucault 1977). Let us look at some specific examples of this simulated policing. The following discussion uses in-depth qualitative research interviews conducted with 7 public relations professionals in 2010 in the NSW Police Force and WA Police1.
1

Policing through Social Media As a WA Police media professional noted:

Oh the demands for the ready-made immediate story, I think in the last few years weve had a huge increase, a massive increase in different types of media. Its not just television, radio and newspapers anymore, its online news who have a deadline every ten seconds, so theyre on the phone all day and with Twitter and Facebook, well get phone calls saying Oh so and so just said on Twitter this...

1

This is part of a broader research project Policing Public Opinion which seeks to interview public affairs / public relations professionals from across all Australian policing organisations.

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well we dont know cause we cant cover every Twitter entry in the whole world. So weve got to... you know, its a huge challenge, particularly when weve got our staff level here is a fraction of what Sydney and Melbourne have that hasnt even changed and the media has quadrupled in that time.

The NSW Police Force has over 50,000 Facebook fans. If the number of fans one has on a Facebook is a reflection of popularity, NSW Police are the most popular kids in the simulated policing class. The site operates largely as a news feed with police media releases often going straight to the Facebook site. A story/release is usually followed by comments and feedback from the public. The release from Friday, July 1, 2011 at 5:50pm is pretty typical:

Police investigate after child approached Phillip Bay by NSW Police Force on Friday, July 1, 2011 at 5:50pm

Police in Sydneys eastern suburbs are investigating after a child was approached in Phillip Bay yesterday. About 8.15am, the 11-year-old boy and a friend were waiting for a bus on Anzac Parade when it is alleged a dark-coloured sedan pulled up next to the boy.

It is alleged the driver attempted to entice the young boy into the car however the boy walked away and got on a bus. Police were notified and officers from both Botany Bay and Eastern Beaches Local Area Commands are investigating the alleged incident.

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Detectives are appealing for anyone who witnessed the incident or any suspicious activity in the area, to come forward. Police believe the driver was trying to disguise his or her appearance by wearing an orange wig, large reading glasses and heavy makeup. Anyone with information should contact Eastern Beaches Police via Crime Stoppers on 1800 333 000.

However, fan comments almost inevitably follow. These particular responses are also fairly typical and indicate the extent to which to public are drawn on and drawn in to this simulated policing:

Jessica Louise Sculthorpe: What is our world coming to. That is disgusting.

Belinda Saxby: We have had a child approached in the Woolgoolga area too.

Jodie Nicole: yes we also have had around 20 children approached now in the shell harbour area, in a matter of 4 weeks.

Vera Manjetny Woods: so r u saying their 'heavy make-up' made then look lighter than they were or it was light so they wouldnt (sic) look as dark.

Jodie Nicole Im (sic) sure if it was the prime minister that was kidnapped they would have 24 hr broadcasts, thank you NSW police force for keeping us involved in these attempted kidnappings, i just wish the news would do the same.. I really hope that young girl is found safe.

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Bianca Butt As far as Im (sic) concerned I will break the Law If anyone touches my kids AMEN

Shaune Bevan I'm sure you would have a whole army of people who would do that Bianca if anyone knew who these low life mongrels are.....

Brendan Denning Drag queens lol

Sam Armour this is becoming a sick world people who do tht (sic) should be locked up 4 life

So here on the NSW Police Force Facebook page, motives are imagined, single cases are projected on to greater crime and social problems, similar experiences are shared, information on crimes is revealed. Very often police are congratulated for their work. Occasionally negative comments are posted such as this:

Paul Ofthefamily Keogh: Looks likes a fag page to me....

However, almost immediately fans come to the rescue of the NSW Police:

Pamela Connell: illiterate knob-jockey!! ...... and obviously Centrelink pays your wages Mr Keogh..

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Michelle Buruato this idiot wants all of this attention ...so just stop giving to him ...ppl with his mentality thrive off of everyone attacking it ...just ignore it and hope it crawls back in its hole

As the director of the NSW Police Force Public Affairs Branch told us, he rarely has to mediate when such negative comments appear. Fans on the police Facebook site immediately put the offending contributor in their place.

Policing is simulated and played out in an online web culture where interested members of the public engage in crime talk and policing discourse a kind of on-line virtual or simulated community policing.

Policing and Reality Television Policing agencies have become increasingly keen to partner television production companies in producing reality television series of policing or observational documentaries as they are somewhat euphemistically known. In NSW at the time of our interviews the Police Force were contracted to be involved in no less than six separate observational documentaries. West Australian Police were also engaged in a number of ob-docs and have been for some time. As the head of WA Police Media told us:

Well The Force - we were the first state to sign up to The Force. It was a wholly a West Australia Police program when it commenced, I think four-and-a-half years ago. It now involves New South Wales, Northern Territory and Tasmania. We see that as a highly valuable way of, high impact way of - you know what the greatest benefit is? It's been able to portray the realism of policing and also our

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professionalism. I'm not so interested as the media boss is in showing us catching a crook as how courteous or helpful the police officers are. It's difficult to measure the value of that. We've done one set of external research that came back that said people's views had significantly changed about policing as a result of seeing that. So we're doing that. We're doing a spin-off series with the Seven Network on dogs. We've just commenced a series with Foxtel called Kalgoorlie Cops which focuses on the gold fields and we're also doing a project for the BBC which will involve one of our officers going to the UK

While these commercial arrangements also provide an income stream for police organizations (although not originally for WA Police as they were quick to point out), this appears not to be the key justification for police involvement. Rather, these provide another outlet for the extension of simulated policing; not only showing police doing something as our NSW Police respondents put it, but also providing narratives of deterrence and attempting to build trust in police and legitimacy in the police organization. As Tyler (2006) and Hough et al (2010) have noted, legitimacy in the organisation this can also have the effect of increasing public compliance with the law and cooperation with police. Thus the governing rationality here suggests this simulated policing are perceived by their advocates have very real effects. As the head of the NSW multi-media unit put it:

Deterrent, its the word... Actually the catchword of an awful lot of these programs is that at the end of the day its deterrent that will stop them. Its to stop them drink driving, its to stop someone who watches The Force - and The Force is another one, an observational documentary, just tracking cops in their various

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roles from general duties right through to specialist squads and literally sticking behind them like glue and following their moments.

While humanising policing was one justification for police engagement in these programs, it was clear that there was a broader strategy that saw particular programs partnered for specific purposes as the NSW Director of Public Affairs notes:

theres three sides to that, humanising the job is good, thered be those who are saying... some elements of the organisation rely on a fear factor simply to stop something happening so if the riot squad turn up at a party thats out of control they want people to stop what theyre doing the moment their presence is there so they actually dont have to do anything human thats why they cruise around in [black] vehicles and wear scary looking clothes because people go ok I get the picture. [E]ach show will have a different corporate objective like you know Crash Investigation Unit clearly has road safety messages in it so thats why we make that show and because when youre confronted with those investigations you get people thinking about those sorts of issues.

Clearly then this simulated policing is targeted. A range of operational messages are being disseminated. Moreover, these messages are controlled when need be. However, one would expect that production companies self regulate what they put to air to a large extent given the mutually beneficial status of the programs to the producers, the network and the police. The Director of Multi-Media at the NSW Police Force put it thus:

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We get to vet it. We get to vet it. We make sure that were not going to portray ourselves in a way that is wrong and were not going to let something that is clearly wrong go to air. But weve allowed things going through, its run with the legal side as well and some people mightnt like some of the stuff. As we said with Drug Lords, I mean theres material there that some of the police dont like seeing but in some ways other officers see that as a... other senior officers see that as a great education process, so thats there. So yeah, we oversight it. RBT... I cant think of many programs where wed even make dramatic changes on anything.

The Director of the WA Police Media unit saw the objectives of ob-docs similarly:

ML: What are the objectives when you are engaging these shows? Director of WA Police Media Unit: Demonstrate the professionalism of the police; raise public confidence in policing in our jurisdiction; allow the community to better understand the challenges that the police face; allow the community to understand the types of decision-making that the police have to make. For example, there's been recent controversy about the use of tasers and the roll out of those to general police. Through shows like The Force, we're able to show that the training that occurs with things like Tasers and how people don't just immediately whip it out and Taser somebody but often, how a situation in a street might evolve. So if initially there's an argument, the police try to talk, to use verbal judo to talk the person around and then ultimately, if it escalates and they have to use their force option.

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Ironically, The Western Australian Corruption and Crime Commission reported in October 2010, shortly after this interview, that tasers are now a compliance tool and were increasingly being used against people resisting arrest, up from 20 per cent of Taser deployments in 2007 to 43 per cent in 2009 (Watson cited in Guest 2010). The report followed the public release of video footage of a man in police custody being tasered 13 times by WA Police (http://video.theaustralian.com.au/1606567920/WA-Police-Taser-man13-times).

Police and Multi-media Production If you were watching the television news on Channel 7 and other networks on June 22nd 2010 you would have seen a 67-year-old Sydney man arrested and charged with 31 sexual offences against three young boys. The man was arrested at his Northbridge home on Sydneys North Shore and escorted, handcuffed by police, to a waiting police van.

You would have been forgiven for thinking that Channel Seven News or whatever network you were watching were reporting from the scene, cameras ready, reporter reporting. They werent. The footage was filmed, cut, edited, produced, placed on YouTube, linked to the NSW Police Force web site, and delivered to the networks by the NSW Police Force Multimedia Unit just as the reports of the arrest in the daily papers were taken from NSW Police Media Unit media releases (e.g. http://www.smh.com.au/nsw/sydney-paedophile-ring-arrest20100622-ytu1.html#ixzz1SdFcGl9x).

Multi-media production units are gradually finding their ways into police services. As Ferrell et al (2008: 184) put it, police shoot more images then they do people. Many of the images related to crime and policing that we see on the evening news bulletin or in the daily

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newspapers have often been shot by police camera crews. Not only that, in many cases the film has been edited in house, and the story presented as a completed news item, ready to report. Thus, what viewers perceive as an objective news story is actually one completely framed, produced, and delivered by a policing organisation.

On one level this is not so surprising. Our earlier research has shown how police media releases are often reproduced in newspapers verbatim (McGovern and Lee 2010). In this sense a more sophisticated video production unit is simply an extension of the already existing police-media apparatus.

However, the primacy of the image in contemporary culture means that this extension is significant. The ability of policing agencies to frame policing and crime issues is great. To return to the news story that began this section of the paper, the NSW Police Multi Media director noted in his discussion with us:

.before I came across here we shot some video today of a chap arrested in Northbridge this morning for some crimes where he has assisted Dolly Dunn way back when in procuring young lads for child sex assaults .it sounds like a bit of a mastermind in this sort of area, so hes about to face something like 200 charges this afternoon, a 67 year old. Now we shot some video of his arrest... its not all about us just shooting the videos and releasing it to the media but it is about protecting the neighbours, there may be family involved. If you tell the whole media to be there at the same time you do the collateral damage to the case; it could be quite large. So in this case we would shoot it but the media would know a whole lot of other background information by other ways, through fact sheets

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and stuff like that, or depending on the nature of the story we might get them in and have them there soon after the arrest. So the actual arrest part is protected in the sense that were not allowing things that are going to allow cases to fall over later on for legal reasons.

Conclusion These new techniques and technologies being deployed by policing organizations signal a significant intensification of police engagement with the media and the public. While in many senses these strategies are simply extensions of traditional forms of media and public engagement, the examples we have discussed here all take place in newly emerging virtual and tele-visual contexts. These are representations of policing that simultaneously constitute policing: they are simulated policing. These strategies break down the boundaries between popular culture, policing culture, operational reality and fictional entertainment.

That most watched of institutions (Mawby 2002) is reveling in the spotlight and developing new capacities for taking advantage of its popularity as knowledge brokers for crime and policing. Images of policing are no longer simply re-presentations. Policing itself is being altered by its engagement in these virtual fields, these simulations.

However, as the currently emerging News Corporation scandal in the UK demonstrates, there are dangers for police organizations that become blinded by their own popularity culture. Like the UK Metropolitan Police, most of the public affairs professionals in Australian police organizations are former journalists generally senior figures who have experience covering crime news. The mutually beneficial relationship between the media and police has the potential to blind both to their responsibilities. A critically engaged media has been vital to

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the detection of police corruption and misconduct for example. So while there are no doubt potential regulatory benefits in these modes of simulated policing, there are dangers in embracing a police popularity culture where only image works.

References Baudrillard J (1983) Simulations. New York, Semiotext(s). Chan J B L (1997) Changing police culture: Policing in a multicultural society. Cambridge: Cambridge University Press. Emsley C (1983) Policing and its context. London: The Macmillan Press. Ericson R V and Haggerty K D (1997) Policing the risk society. Oxford: Clarendon Press. Ferrell J, Hayward K and Young J (2008) Cultural Criminology. London: Sage. Foucault M (1977) Discipline and punish: The birth of the prison. New York: Pantheon Books. Freckelton I (1988) Sensation and symbiosis. In: I. Freckelton and H. Selby (eds) Police in Our Society. Sydney: Butterworths. Guest D (2010) Man tasered 13 times by WA police was subject to excessive force, says report. The Australian, October 4th, 2010. http://www.theaustralian.com.au/news/nation/mantasered-13-times-by-wa-police-was-subject-to-excessive-force-says-report/story-e6frg6nf1225933953993, accessed 19/07/2011. Hough M, Jackson J, Bradford B, Myhill A and Quinton P (2010) Procedural Justice, Trust and Institutional Legitimacy. Policing: A Journal of Policy and Practice 4(3): 203-210. Manning P (1999) Reflections: The Visual as a Mode of Social Control. In J. Ferrell and N. Websdale (eds) Making trouble. New York: Aldine de Gruyter.

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Mathieson T (1997) The viewer society: Michel Foucault's `panopticon' revisited. Theoretical Criminology 1(2): 215-234. Mawby R C (2010) Police corporate communications, crime reporting and the shaping of policing news. Policing and Society 20(1): 124-139. Mawby R C (2002) Policing images. Devon: Willan Publishing. McGovern A and Lee M (2010) Cop[ying] it sweet: Police media units and the making of news. Australian and New Zealand Journal of Criminology 43(3): 444-465. OMalley P (2010) Simulated justice: Risk, money and telemetric policing. British Journal of Criminology 50: 795-807. Reiner R (2003) Policing and the media. In T. Newburn (ed) Handbook of policing. Collumpton: Willan Reiner R (2010) The politics of the police (4th ed.). London: Wheatsheaf Harvester. Surette R (2001) Public information officers: The civilianisation of a criminal justice profession. Journal of Criminal Justice 29(2): 107-117. Tyler T (2006) Why people obey the law. Princeton, NJ: Princeton University Press.

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Policing Unlawful Squatting: The Case of South Africa Angel Mabudusha University of South Africa, Florida, South Africa

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract The increasing influx of people in South African urban areas after this country gained democracy created a challenge to the South African Police. These movements had also overburdened the municipalitys service delivery in these urban areas. As a result some of the people remained homeless and resorted to squatting in idle open spaces/ land within the urban areas. The presence of the squatters adjacent to urban areas frustrates the urban residents, who (urban residents) put pressure on the police to deal with this problem. This also put the police in a dilemma, which eventually they cope with by compromising the squatters basic rights and reacting in favour of the urban residents.

Introduction Towards the first democratic elections in South Africa the South African Police together with the apartheid legislative policies were among the burning issues identified for transformation process. These policies discriminated against black people and denied them the freedom of movement and land acquisition. The changes made to the South African Police after democracy include among others the limitation of the police powers against the people who unlawfully occupy any piece of land without permission of the owner/s. This provision is included in The Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998. That is the Act which replaced the previous apartheid legislation called The
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Prevention of illegal squatting Act, Act No 52 of 1951. The Prevention of illegal squatting Act, Act No 52 of 1951 authorized unfair removals of squatters in urban areas and it had heavily discouraged the occupation of blacks in the urban areas. The goal of this piece of legislation was to ensure that no black person occupies any public or private owned land especially those close to urban areas. However, owing to the provision of the new legislation (The prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998) a large number of black people migrated to urban areas and freely occupied areas of their choices. Hence those who could not afford accommodations resorted to squatting in idle open spaces within the urban areas.

The current democratic legislations regulating unlawful squatting for example, The Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 does not only limit the police powers of dealing with unlawful squatting, however it does not support the integration between the poor and rich people. Instead this legal prescript supports the eviction of people with no permission to occupy any piece of land (irrespective of circumstances behind the problem). The police task is only to ensure that unlawful squatters are indeed evicted and during the eviction process no one gets hurt in the process. As to where the squatters should be accommodated is often neglected within these eviction processes.

This article argues that the conventional method of dealing with unlawful squatting in urban areas is not only unsuccessful but it is also very biased. Hence not much has been done by the local government or the police to protect the rights of the squatters. This article also argues that if the police are to uphold safety and security and protect the rights of all citizens, they should look at the rights of both parties: the squatters and the adjacent urban residence. The

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South African constitution of 1996 Act 108 enshrined every citizen in this country with the rights to reside anywhere and to have decent housing. However, because of issues such as Reconstruction Development Programme (RDP) housing backlogs, the difficulties of obtaining land via land reform programs, and high unemployment rate, the majority of these squatters were unable to secure decent housing. Among the questions arising from the above argument are: Should the squatters be blamed for being unable to secure decent houses and land ownership for themselves? Should the urban residents be blamed for not integrating the squatters within the urban areas? Or should the whole blame be carried over to the local government because it could not manage to provide every citizen with decent housing and land ownership as promised in the constitution? All of these parties have good reasons for their behaviours, but it appears that some interests are more valued than the others.

Conventional Methods to Deal with the Problem of Illegal Squatting in the Urban Areas in South Africa Despite the development of the RDP houses many South African citizens remained homeless and others squatted unlawfully in urban areas. This is evident in municipalities such as the City of Johannesburg which have limited resources and insufficient manpower to attend to all the housing backlogs within their jurisdiction. At the beginning of these RDPs the Social Development Departments recruited unlawful squatters into the government shelters. However, because of the increasing number of people migrating to urban areas, this problem became difficult for the government institutions to manage. As a result the relocation of squatters for accommodation purposes in South Africa became unsuccessful, with long backlogs of people on the waiting list for RDP houses (City of Johannesburg, 2003 and Motsuki, 2008).

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This study finds that the squatting problem in urban areas poses a challenge to the police and this is why the methods attempted to deal with unlawful squatting in urban areas were unsuccessful. When the police were called to remove unlawful squatters within the urban areas they would confiscate the belongings of these squatters and chase away those with the legal citizenship permits. Those (squatters) found without the legal permits were arrested and send to Lindela repatriation centre for deportation to their countries of origin. Most of those who were chased away often return to the same spot, sometimes immediately or a day or two days after the police had left, since they had nowhere to go. Every time the police are called they follow the same strategy. In turn, that led to the waste of police resources. In order to ensure the reliability of this information the researcher cross-checked the information gathered through the interviews against similar studies conducted by Ballard in Cape Town (2004) and the study contacted by SABC 1 news programme in Kwa Zulu Natal (2008). This triangulation method proved the existence of similarities between the current study and the previous studies, which is the fact that the conventional method used to deal with unlawful squatters is fruitless and biased. As a result a new approach that would address this problem from a holistic view point (that protects both the squatters and the urban residents rights) is needed.

Research Methodology This paper adopts phenomenological method of inquiry, which entails that the data are collected from the participants who experienced the problem under study (De Vos, Strydom, Fouche & Delport, 2005). The advantage of this type of inquiry is that it provides the research with in-depth information about the problem from the standpoint(s) of the participants, though it is sometimes criticised for being constrained by closeness to their perspective. Another limitation of this type of inquiry is that the presence of the researcher

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might influence the behaviours of the participants. To address this limitation the researcher did member checking, whereby she asked same question frequently on different occasions to determine if the information provided was consistent. Interviews, field notes and observations were made from the police officials, adjacent community residents of Weltevreden Park and the unlawful squatters and their surroundings, allowing for triangulation of the findings. This range of participants was selected because of their various experiences regarding the topic under the study. Weltevreden Park area was selected for this study because it is one of the urban areas with large tracks of opens spaces occupied by unlawful squatters within the City of Johannesburg Metropolitan Municipality (CoJ). This area is mainly characterized by a number of town houses and business complexes. The majority of residents in this area are white middle class people whereas; the squatters found adjacent to this area are mainly black people surviving on temporary low- paying jobs (Honeydew Crime intelligence Analysis Centre, 2008).

The co-coder was also used to provide a second opinion on the interview transcripts in order to establish if there are commonalities between her interpretations and the researchers interpretation. The findings in these studies showed that the conventional method of policing illegal squatting in the urban areas it is a challenge to the police. The criterion followed during the coding process was Teschs eight step data anaylsis. In this case the researcher read through all the transcriptions one by one; identified the similarities that emerged from each transcript; labeled each segments in the transcript; grouped similar labels together; verified the labels of each group; again re-group the data that belongs to the same category and finalised the analysis process by revising the analysis process (Tesch, in Van As & Van Schalkwyk, 2000: 62).

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The Objective of the Study The objectives of this study include: to investigate, identify and describe the factors that challenge the policing of unlawful squatting in urban areas as well as to propose a framework of dealing with unlawful squatting in urban areas.

Definition of Concepts Shearing (1998:1) defines the term policing as what the police do. According to the Constitutional Act 108 of 1996, section 205:3, the police duties include the task of maintaining safety and security, preventing and securing the inhabitants of this country and their property as well as to uphold the law, enforce the law and to maintain public order. For the purpose of this article, policing will refer to the activities that the police do in order to uphold the law and to protect the rights of the people they serve.

Unlawful squatter, is a term used interchangeably with vagrant, according to The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, section 15, it refers to a person who occupies a land without the express or tacit concerned of the owner or the person in charge, or without any right in law to occupy such land. For the purpose of this article the unlawful squatters are categorized as have nots while the urban residents are categorized as haves: the squatters are poor people without enough finances to better their living, whereas the urban residents are rich people with enough finances to secure expensive urban houses and to hire private security companies for extra safety measures.

The Context of Unlawful Squatting in South Africa The South African immigration data of the 2001 census showed that the internal and external migration of people into the urban areas in South Africa increased massively after this

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country obtained democracy. This migration was observed mostly among black people from within the country and others from the neighbouring countries. The reasons for this surge in migration of people into the urban areas include the changes in the South African legislation. The areas which previously excluded black people were opened for everyone. The demographics of these migrants show that they are mostly the poor people who are unemployed and cannot afford to pay accommodation in the urban areas (Kop & Collinson, 2006). This problem challenged the local municipalities in terms of providing shelter for everyone. As a result, most of these migrants resorted to squatting anywhere in the urban open land. The presence of these squatters close to the urban residences had negatively impacted on the living style of the urban residents and it had also challenged the police duty of maintaining safety and security in those urban areas (Ballard, 2004 and Solomon, 1996).

According to the study conducted by Ballard (2004: 48) in Cape Town urban areas and the investigation conducted by the SABC 1 news team (2008) in KZN, the adjacent residents to the open spaces disliked the presence of the squatters close to their areas. The reasons for that include, the fact that the presence of these squatters adjacent to their urban residence lowers the value of their houses and threatens their urban status as a Western, modernized and civilized area (Ballard, 2004: 54- 56). These adjacent residents in this study are also concerned with the safety and security of their properties and of themselves. This was evident when some of them emphasized that since the squatters moved in adjacent to their homes they have been experiencing a high crime rate in their area and they no longer enjoy their status as urban residents. In Ballards study one of the residents furthermore compared her living close to the squatters as living in the middle of an African kraal. A kraal in this case is a representation of rural, uncivilized black peoples life style (Ballard, 2004: 54). Some of the residents in this study expressed angrily that they do not care about what the

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government or the police do about the squatters; the only thing they wanted was for the police to remove the squatters close to their residence. The reasons for their reaction also reflect the same allegations made in Ballards study that:

squatters ruralise their urban area and lowers their property values, they threatens their safety and security as they no longer feel comfortable to walk around their area and,

they threaten their health as they make fires on the open spaces which cause smokes as well as,

push them to spend more on increasing their safety measures by contracting private security companies and installing surveillance cameras for extra security.

Contrary to the allegations made by the residents, the police record shows no evidence that links the squatters adjacent to the urban area with the crimes that occurred in those areas. Instead the police allege that those squatters had been of help to them in terms of providing them with information about the crime suspects. The researcher also observed that those open spaces within the urban areas link a number of areas together making it easy for every person including the criminals to access those urban areas. This makes these urban areas vulnerable to criminal activities.

The squatters adjacent to Weltevreden Park urban area indicated that they have selected that area because of the availability of the open spaces adjacent to the urban area and also due to continuous development taking place in that area. The researcher also observed that this area (Weltevreden Park) is prone to new business and town house developments. Therefore, these developments make it easier for the squatters staying in those open spaces to find temporary
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jobs. Lack of shelters for the homeless in this area as well as the rise of the xenophobic attacks in South Africa in 2008 have also influenced the migration of some of the foreign nationals to these urban areas (White, 2008). The reason was that the xenophobic attacks were more active in the township than in urban areas. Therefore, for safety purposes some of the foreign nationals relocated close to these urban areas. The findings also showed that the adjacent residents were concerned about the fact that these squatters save used tins and plastics in the greenbelts (open spaces) and that makes their area unattractive. In response to this concern, the squatters revealed that to them that is another means of making money. They collect used materials and recycle them in return for remuneration, which assists them to sustain themselves. The above discussion shows how the urban residents fight for their economic status as urban, civilized and modernized people whereas, the squatters fight for survival as human beings. This in turn put pressure on the police because they are expected to act on this problem. Often the police resort to overlooking and compromising the human needs of these squatters in order to satisfy the interests of the urban residents. However that does not solve the problem: if the squatters are removed today they come back the following day and the residents in urban areas keeps on putting pressure on the police to protect them and their properties.

Social Democracy versus Neoliberalism Social democracy refers to social equity, which is the core of democracy. It advocates that all citizens in the country are equally entitled to a decent living conditions and access to basic infrastructures/ needs. In South Africa, it represents national liberation and it is more concerned with attaining freedom for all and in promoting social relations among people (Mafeje, 2002:18). The characteristics of social democracy entail: the creation of job opportunities for all, protection of every citizens rights and the accomplishment of equal

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economic and resource redistribution. It intends to create an environment where the countrys economy can be expanded without compromising the rights of the poor (Gray, 1996: 17). Lemanski (2006:417) argues that the problem with social democracy in South Africa is that the apartheid policies which were used to determine who has the right to settle in urban areas, continues to influence the current post- apartheid social relations. While apartheid policies were aimed at segregating whites from other groups, the current policy appears to have shifted the focus from race to class. This means that social relation between people is no longer a success based on the colour of ones skin but due to ones wealth. Lemanski reiterates that wealth is the current determinant of how socially integrated one will be in an urban area. Furthermore he suggested that the notion of rainbow nation, proudly South African and new South Africa as well as the idea of mixing RDP houses with bound houses (in order to encourage integration between people of different classes) can be achieved fully if the protection of individuals wealth may not intervene in social relations. In the case of this study it clearly appears that the squatters do not fit within the class of the urban residents and this is why they cannot win both the urban residents and the polices recognition as innocent criticizes.

Carlsson and Lindgren (2007:21) refer to social democracy as an ideology that consists of two pillars. One pillar concerns the democratic values and the other pillar concerns the social theory. The democratic values emphasises that the values of the people should be part and parcel of their social life and social development. The democratic values entail: freedom, equality and solidarity. Freedom refers to an individuals ability to make his/her life choices freely. Equality is much depended on freedom because for an individual to be equal to others he/she must first have the freedom to develop himself/herself. Equality is reached

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when no one is favoured more than the other. If this is not realized it means those with power will receive more advantages than those with no power (Carlsson & Lindgren, 2007:27). Solidarity refers to sharing with one another in times of need (Carlsson & Lindgren, 2007:32).

Social theory emphasises that in order to achieve the democratic values the means of production together with other elements contributing to social development should be regulated by the ruling government. Hence, the ideology behind social democracy is to uphold the democratic values of the society while increasing the economic development for all (Carlsson & Lindgren, 2007:22). This means the rights of the have nots should be protected against exploitation.

According to Beaudreau and Claizier (2009:1), Neoliberalism is based on the ideas of classical liberalism, which are concerned with limiting the political powers of the state and promoting free economic system. These neoliberal ideas operate within the social democratic country; but focus only on protecting personal interest rather than on equal social rights for all. They represent the minority group of wealthy citizens whose interest is in ensuring that their wealth is well maintained within the countrys market system. Brown (2011:131) states that neoliberalism entails the ideas that the individual performance in the market system should be independent from the government regulations. While Patnalk (2006) views the neoliberal policies as the ideas that affect the lives of poor people negatively, by increasing exploitation of the poor through curtailing regulation and cutting back the safety net of state welfare provision.

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The above discussion shows that the police side with the protection of property rights of property owners against the human rights of squatters (which they also have a duty to defend) because of the pressure from neoliberalism. The values such as freedom, equality and solidarity are neglected when dealing with squatters in urban areas. Although the urban residents are aware of the circumstances of these squatters they are unconcerned about them; they are instead concerned with enhancing their property values and their other personal interests. Hence they go as far as expanding their security measures to protect themselves against the squatters.

Conclusion The challenges that are experienced by the South African Police regarding unlawful squatting are common in most urban areas within the country. These are challenges that need to be addressed outside of policing itself, in order for police to address the squatting problems adequately. The police had to invite the stakeholders such as the Department of Social Development together with the urban residents to determine the way forward on this matter through the coordination of resources. The CoJ has limited government shelters, which in some areas do not exist. This issue alone shows that there is a need for more shelters within this municipality. Some of the Hong Kong local municipalities adopted the strategy of developing low-cost rental flats while the Ahmebadan municipality in India resorted to fundraising projects to deal with this kind of problem. These strategies afforded the squatters temporary accommodation (Hong Kong: The Facts, 2008 and Mahadevia, 2002). The South African Social Development Departments together with the urban residents can learn from the Hong Kongs and the Indian strategy. This could promote the values of social democracy and bridge the gap between the poor and the rich by alleviating the problems faced by the squatters and by the police departments.

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References Ballard R (2004) Middle class neighbourhoods or African Kraals? The impact of informal settlements and vagrants on post-Apartheid white identity. Urban Forum 15(1): 48-73. Beaudreau J and Clairzier P (2009) Neo-liberal democracy: A contradiction in terms. Available at: http://www.spectrezine.org/neo-liberal-democracy-contradiction-terms Brown D (2011) Neoliberalism as a criminological subject. Australian & New Zealand Journal of Criminology 44(129). Carlson I and Lindgren A (2007) What is social democracy? Sweden: Sjuharadsbygdens Trycker. City of Johannesburg Municipality (2003) Draft regional spatial development framework administration region 5. Johannesburg. De Vos A S, Strydom H, Fouche C B and Delport C S L (2005) Research at grass roots for the social sciences and human services professions (3rd ed.). Pretoria: Van Schaik Publishers. Gray J (1996) After social democracy: Politics, capitalism and the common life. Britain: E G. Honeydew Crime Intelligence Analysis Centre (2008) Crime statistics. Roodeport: Honeydew SAPS. Information Services Department (2008) Hong Kong: The facts. Hong Kong: Information Service Department. Kok P and Collinson M (2006) Migration to urban South Africa. Report 03-04-02. Pretoria: Statistics South Africa.

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Lemanski C (2005) The impact of residential desegregation on social integration: Evidence from a South African neighbourhood. Geoforum 37: 417- 435. Mafeje A (2002) Democratic government and new democracy in Africa: Agenda for the future. Paper delivered at the African Forum for Envisioning Africa, Nairobi: Kenya, 26-29 April. Mahadevia D (2002) Sustainable urban development in India: An inclusive perspective. Geneva: UNRISD Publications. Motsuki A, Law enforcement and operations manager of Region C at the City of Johannesburg Metropolitan Municipality (2008) Statement to researcher, 17 June. Johannesburg. Patnalk U (2006) Poverty and neoliberalism in India. Paper delivered at Gokhale Institute of Politics and Economics, Rao Bahadur Kale Memorial Lecture, Pune, 3 February. SABC1 (2008) Cutting edge:Store away. SABC, 5 June. Shearing C (1998) Changing paradigms in policing: The sSignificance of community policing for the governance of security. University of Toronto Community Peace Programme, Occasional paper no. 34. Available at: http://www.iss.co.za/Pubs/PAPERS/34/Paper34.html Solomon H (1996) Strategic perspectives on illegal immigration into South Africa 1. African Security review 5(4). Available at: http://www.iss.co.za/ASR/5No4/StrategigPerspectives.html South Africa (1996) The Constitution of the Republic of South Africa 108 of 1996. Pretoria: Government Printer. Available at: http://www.info.gov.za/documents/constitution/1996/96cons2.htm#24
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South Africa (1998) The Prevention of illegal eviction from and unlawful occupation of Land 19 of 1998. Government Gazette 789 (18964) 5 June 1998. Van As M and Van Schalkwyk M (2000) Research and information management IV & Research Methodology. Florida: Technikon SA. White D, Weltevreden Park Councillor (2008) Statement to the researcher. 17 June. Johannesburg.

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Developments in Gang Policy and Policing in the UK: Who are Labelled and Why does it Matter? Corresponding author: Rob Ralphs Department of Sociology, Manchester Metropolitan University, UK Rosamond Street West, Manchester, M15 6LL, UK Email: R.Ralphs@mmu.ac.uk

Hannah Smithson Manchester Metropolitan University, UK

Patrick Williams Manchester Metropolitan University, UK

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract Political responses to gun and gang problems in the UK have increased dramatically in recent years. The targeted policing of gangs centres on policy transfer from the US, e.g. dedicated, intelligence-led gun and gang units, multi-agency strategies and gang injunctions. This paper draws primarily on research commissioned by a Local Authority in the North of England. The research focused on assessing the current situation in relation to the extent, and nature, of violent gang activity in three predominately Asian (Pakistani and Bangladeshi) areas. We provide empirical evidence of the problematic way that the term gang is being used and, we argue, abused in the UK. The paper provides a critical analysis on the specific
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impact that these developments have had on young ethnic minority males in the research areas. We document the significance of ethnicity in determining which communities receive the gang label status and the increased surveillance of Muslim communities.

Keywords: Gangs, ethnicity, policy, policing, prevention

Introduction Respondent: Hello Patrick, Rob, I didnt know you lived around these ends. Researchers: We dont... Respondent: What are you doing around here then? Researchers: Were doing some research on gangs . . . Respondent: (laughter) Gangs! You wont find any gangs around here.

Youre wasting your time mate! There aint no gangs here [laughs]. Drugs yes, gangs no. Thats funny man, gangs in [name of area], funny as . . .

(Fieldwork conversation with a 24-year-old Pakistani male, resident in one of our research area).

This paper draws on the findings of research commissioned by a local authority in the North of England to outline what the authors view is a growing problematic usage of the term gang when dealing with certain communities in the UK. We argue that the uncritical acceptance of the term gang and the policy transfer that has ensued has the potential to further marginalise and isolate some ethnic minority communities. The focus here centres upon the increased surveillance and policing of Asian communities, specifically young Pakistani and Bangladeshi males as a consequence of the application of gang labels that

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elevates the perceived level of risk they pose. Prior to embarking on our findings, we firstly highlight some of the problems and concerns relating to the problematic use of the term gang. Secondly, the alacrity of key Criminal Justice developments in responding to and tackling the gang problem in the UK is outlined, demonstrating the crime control model of contemporary penal policy (Faulkner 2007). In particular, this paper reflects the authors real concerns of the confluence of gang speak (Hallsworth and Young 2008) and risk talk (Cohen 2002) and the serious implications of this development for young British and Minority Ethnic (BAME) individuals/communities where behaviours (which have little or no association with gang behaviours) are increasingly being defined as gang related. We conclude that the uncritical and arbitrary employment of the gang label within a risk paradigm will serve to further intensify negative police-community relations and exasperate the acute socio-economic experiences for marginalised BAME communities.

UK Gang History and Knowledge There is a perception that gangs are an American phenomena that are transferring to Europe and other continents. Thrashers (1927) study provides a point of reference to the first piece of gang research. However, in a UK context, Davies (1998, 2008) has provided historical evidence of gangs existing as far back as the 1870s in Manchester and 1920s in Glasgow. Despite this long documented history, academic research that focuses on gangs has been minimal in comparison to the scale witnessed in the US, where the concentration of much gang research has traditionally focused its gaze on ethnic minority and immigrant groups. The current research landscape in the UK remains relatively scarce despite an increase over the past decade (see Alexander 2000; Bennett and Holloway 2004; Aldridge et al 2008; Pitts 2008).

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Marked social, cultural and legal differences between the UK and US present difficulties in translating findings (and responses) to the UK context. The differences between the US and UK contexts are significant and include key differences in (legal) access to firearms, welfare state provision, ethnic segregation, immigration, (gang related) homicide rates and the number and membership size of documented gangs. By comparison, the UK has very few known gang members and gang related firearm homicides. Nevertheless, the past decade has seen increased media interest and consequently political interest in violent youth gangs in the UK culminating in policy transfer from the US. This has mainly been a result of high profile shootings and stabbings, often too readily attributed to gang activity.

Developments in Gang Policy and the Policing of Gangs in the UK Despite the many problems inherent with defining a gang and both academic and practitioner concerns with the growing use of gang terminology, political responses to gun and gang problems in the UK have increased dramatically in recent years (YJB 2008). There have been a number of Home Office initiatives to tackle gangs and perceived links to gun and knife crime, aimed in particular at young people including the Tackling Gangs Action Programme (TGAP) and the Tackling Knives Action Programme (TKAP). We outline here how the targeted policing of gangs clearly centres on American inspired policy. Many English cities now boast US styled dedicated police gang/firearm units and support US influenced multi-agency responses to the gang problem. Further mirroring of US responses to gangs are evident in developments such as gang databases and new police powers under the 2009 Policing and Crime Act that introduced gang injunctions (dubbed gangbos in the UK), that limit the association of gang members in public places. More broadly, section 60 powers enshrined within the 1994 Criminal Justice and Public Order Act, which permits the stop and search of people for guns and knives points towards its disproportional use against

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young BAME people, a point that is now subject to judicial review. It is our belief that within the UK context, very few academic or empirical gang studies have sought to acknowledge or understand the unmentionable nexus between ethnicity and gangs. We believe, however, that the aforementioned policy responses to gangs are disproportionately targeted and employed against young BAME people and communities. We concur with Alexander (2008: 12) who claims:

[T]oo often groups of Black and Asian men are seen as gangs, criminalised and then dealt with on this basis, by the police, in schools, in their communities and on the streets.

We go on to demonstrate how the gang label was adopted in our research area by control agencies (and some community stakeholders) despite a lack of working definition. Furthermore, we contrast the official view with a lack of gang identity or acknowledgement of the existence of gangs by young people residing in these areas.

The Need for Locally Generated Empirical Knowledge The above set of national developments, have emerged despite a distinct lack of empirically generated knowledge and understanding of gangs in a local context. Moreover, they have advanced in the absence of an agreed definition of what a gang is (HMIPP 2010). Without such agreement, it is futile (and dangerous) to formulate and implement gang policy. We are therefore concerned that the new wave of US inspired gang injunctions and dedicated multiagency and policing units disproportionately target young, ethnic minority males from already socially excluded, marginalized and heavily-policed neighbourhoods. In particular, our research suggests that young men from Asian communities who have a greater street

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presence and less ability to find alternative locations to socialise, will be the more likely targets of gang interventions such as gang injunctions and in your face policing tactics.

The Research Project and Methodology The research was commissioned by the serious violent gang board to explore the extent to which violent youth gangs were prevalent within the Northville2 area. Significantly, the commissioners selected three areas for inclusion in the study. The study required an

examination of the multiple social contexts and influences which concurrently work together to influence youth behaviours regarding gang membership. Our fieldwork resulted in recorded data for 15 interviews with community members, 21 interviews with practitioners and 16 interviews with young people. The young people interviewed were aged between 16 and 24 years old. Fourteen were male and two female. All interviewees were of Pakistani or Bangladeshi backgrounds. Eleven focus groups were undertaken involving 68 young people. Participants were aged between 12 and 20 years old. Sixty-one were male and seven were female. On average, the focus groups involved six young people in each group. Overall, 98 per cent of those involved were from a BME background. In addition to more formal, recorded, one-to-one interviews and focus groups, the research team spent time (both accompanied by local community stakeholders and independently) walking around the three research areas and hanging out around identified areas where young people gathered in public spaces. We focused on locations where a range of activities such as anti-social behaviour and drug dealing were known to take place. This data gathering technique led to more informal encounters and unrecorded conversations with young people and community members and facilitated a firsthand view of how young people socialised and interacted within their communities.

2

The name has been changed to protect the identity of the research area and the anonymity of participants.

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Northville and the Research Areas Northville is one of the most deprived local authorities in England beset with a number of socio-economic problems. It currently has a younger age structure than the national (UK) average with a significantly higher proportion of people less than 16 years of age and a lower proportion of people aged 65 and over. There is also a higher than average BAME

population, with the largest BAME groups being Pakistani, followed by Bangladeshi.

The three research areas had a higher proportion of income-deprived households resulting in more claimants of state benefit and income-support. The proportion of young people

assessed, as not in employment, education or training (NEET) is again higher than the Northville average as are levels of housing overcrowding. Levels of serious violent, assault with injury and serious acquisitive crimes were higher within the research areas when compared to the overall Northville levels. The above indicators highlight the prevalence of criminogenic and acute socio-economic problems within the research communities. Yet comparatively, these figures were by no means the priority areas of concern for crime and offending behaviour within Northville. For example, our research areas ranked outside the top three areas for serious violent crime with only one appearing in the top five for serious acquisitive crimes. From the above figures, it is our view that there was little empirical justification for the selection of the three research areas by the commissioners.

Findings There were clear distinctions between the views of the young people, community groups and control agencies on the existence and prevalence of gangs in Northville. The young people

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consulted for this study were at pains to articulate that gangs were not evident within their communities. I would define a gang as a group of people, individuals, about twenty people, from my own opinion. Like taking [area] for instance, group of [area] lads, making a name up for themselves. Going round, causing havoc in other places such as [neighbouring area], and just distributing their name. Causing havoc, starting something. Thats what Id call gangs. I dont think theres any gang culture here. Theres not any gangs is there, around Northville. (19 year old Pakistani male)

For others, there was an acknowledgement of the existence of groups of young people who would hang about together or just chill with one another. The majority of young people felt that hanging about with friends was very different to being classified as a gang and much of the labelling of gangs was undertaken by those who were too old to know.

It depends on who is looking at you. People who are older might look at it and think yeah it is a gang, Whereas we just look at it and think yeah it is those boys. (15 year old Pakistani male)

It is important to restate that the emerging view from young people was that gangs did not exist within Northville and often, the very notion of gangs in the research areas was derided as laughable. Yet, this view sits at odds with some community members where there was an inference of gangs. However as we will see later, the use of the gang label is appropriated for other purposes. Therefore for community workers and members, gang speak emerges as an

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explanation for territorial rivalry and other socio-economic and the criminogenic features of the research areas. There is gang activity, definitely gang activity. I mean if we are talking about young gangs, I think there has always been an issue with young people in gangs. I think traditionally it is quite a territorial area, territorial town as such with specific divides like areas and bridges and things like. Now territorially you will hear people now, they dont like such and such a person because...you hear it within [area] We hear about a lot of organised fights or there is a fight going to happen...it is territorial things that go on. That is more teenage, younger teenager stuff. (Community worker)

Of significance, community workers associated the emergence of gangs with a lack of employment opportunities. acquisitive criminal activity. This resulted in young people engaging in anti-social and

The groups of young people, or gangs should I say, who are out there some of the issues they are facing makes them form these gangs. Lack of employment, lack of resources, there are major issues in the community like overcrowding, deprived areas, so these young people have a collective togetherness where they are all facing the same issues, they say were all in this pot together so this is our gang its about safety, earning money to better themselves, thats how Id define it. Territory is a big deal for me cos you can have people who live across the road from each other but because its a different postcode then thats how they define themselves.

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(Community worker)

Aside from the definitional ambiguities within the above quote, the socio-economic problems are further compounded by the wider issues of perceived discriminatory attitudes towards the community and the demonisation of Islam, which further impacts upon the young people and the community more specifically.

These young people, they just dont have anything to do. But young people within this particular area are particularly unique the majority of people in these areas are Muslim. If you can imagine that this particular religion has been in the limelight, so theyve not only got all the socio-economic things to deal with, theyve not only got the cultural thing to deal with, we got the racial thing to deal with and theyve also got to deal with the fact that their identity as a Muslim is tarnished bythe media. I think when a young person gets hit from multiple angles with very difficult hard hitting issues at a young age, do they have the skills and confidence to deal with it and come out of their shells? Or do they become more introvert and deal with the people that they know and stick to the streets that they know. And I think itll be the latter. (Community member)

It was apparent that the wider community members we spoke too including project leaders, local Imams, elders and self-appointed community leaders had a more nuanced understanding of the local problems, which linked to the acute socio-economic and cultural problems within the community. They were often highly critical of the local authority decision to focus the gangs research project within their communities. The commissioning of the research was

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interpreted as reflecting a lack of understanding and awareness of the community. The research was often viewed as culminating in funding for the local authority to tackle the gang problem with many community stakeholders stressing that the funding needs to be directed to local groups and Mosques rather than going to the local authority and police.3 Moreover, the appropriation of the gang label was undertaken as a means through which the community could also access crucial resources to tackle the more social, cultural and economic problems inherent within the community. Thereby resulting in an alliance of convenience between some community stakeholders and local authorities. Indeed, it

transpired that the same community stakeholders who condemned the research for focusing on a non-existent gang problem in their communities, had also submitted funding applications to tackle the gang problem and work with local gang members. Hence, we encountered an unexpected positive manifestation of gang speak that was further apparent in the discourses of the control agencies, specifically the police.

Drug Dealing or Gangs Whats in the Name? The police as primary definers (Hall et al 1978) clearly viewed our research areas as having gangs with a recently compiled gang database containing almost 100 gang members and several clearly identifiable gangs with hierarchical structures. It was noticeable that the vast majority (over 90 percent) of the gang members whose pictures adorned the walls were of Asian ethnicity. From the police perspective, the research was commissioned as a direct response to a number of high profile incidents where young people were fatally wounded by firearms.

It was widely assumed that our research was a kind of needs assessment of what areas and projects would receive funding to tackle gangs.

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The two shootings, there was the incident at [unrelated area] and then even the shooting in [unrelated area] came back to Northville. Northville seems to be popping up everywhere. So theres four shootings there that are all connected to Northville. (Police Officer)

In this respect, as Holdworth and Young (2008) have noted as a worrying national trend, gun crime emerges as indicative of a gang problem. It transpired that, gun crime together with drug dealing clearly equated to gangs in the eyes of the police and local authority. Yet no agreeable working definition of what a gang was by the police or wider control agencies existed. The high levels of drug dealing we encountered are significant here. In contrast to the disagreement surrounding the existence of gangs in these areas, each respondent we spoke with, irrespective of whether they were a practitioner, community member or young person, described in detail what they perceived to be an inherent drug-dealing problem in Northville. For the young people, drug dealing was viewed as an individualistic way of making money and not gang activity as was often interpreted by the police. Yet persistently the police utilised the high prevalence of drug dealing within the research areas, coupled with recent firearm activity, as a means of reinforcing the view that gangs existed within Northville. One explanation for this assumption to emerge from police interviews was the lack of funding and subsequent priority attached to drug dealing in comparison to gangs and related violent crime.

Unfortunately, the police dont put their resources into [tackling] drugs, they put them into guns and gangs (Police officer)

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Drugs are not a force priority, its not measured against other forces and thereforeits not a government target. Its from the top they are not going to put their resources into this [drugs], [they] put them into robberies and burglaries. (Police officer)

The severity of this resulted in the following disclosure.

To really embarrass us weve had to find our own [police] vehicles, weve had to beg, borrow, steal [sic] to get [police] cars. Thats my job, to go around the building searching for vehicles for us to use. (Police officer)

In line with conversations with community stakeholders, it became apparent that police officers were also viewing the research as an opportunity to rubber stamp the existence of gangs in the area and potentially ensure resources to tackle a priority-policing problem.

In summary, there are clear discrepancies between the views of the young people, the community and the control agencies as to the existence of gangs. For the young people the notion of gangs was laughable and contested, although there are issues of territoriality manifesting in expressive behaviours (fighting, name-calling) and anti-social behaviours between young people from different areas. In addition, there are groups of young people who hang about with one another or chill because there is nothing else to do within their areas. The drug dealing that existed was widely viewed as an individualistic enterprise. This view contrasts with that of community practitioners and workers who more willingly engage

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in gang-speak. From the community view the acute socio-economic conditions, the absence of legitimate opportunities and the prevalence of an entrepreneurial attitude amongst the young people within the community fosters the engagement of young people in a range of activities and behaviours which in our view, is imprecisely associated with gang involvement. Finally, the control agencies which includes the multi-agency arrangements including the police, local authority crime and disorder teams and other agencies, incorporate the language of gangs despite definitional problems. For the control agencies, there are shifts afoot with violent crime, drug dealing and other illicit behaviours perpetrated by young Asian people within the research areas. The frustration of inadequate resources and the operational focus upon drugs, rather than the better resourced target areas of gun and gangs results in daily difficulties in securing the tools to appropriately exercise their duties. Taking these views together, there is a need to broaden our analysis to make sense of the various views and interpretations of the situation in Northville. We now turn to this matter.

Gang Speak It is clear that the present problems in Northville are set against wider social problems of inequality and a lack of legitimate opportunities. Yet, what has emerged in recent years as a means of sense making is gang speak a concept neatly encapsulated through the work of Hallsworth and Young (2008). Gang-speak increasingly facilitates a simple, bite-size, digestible identification of those outsiders threatening the good society; outsiders unlike us, essentialised in their difference (Hallsworth and Young 2006:184-185). Within Northville, gang speak, through its simplicity has served to conflate gun or violent crime, drug dealing, an engagement with illegitimate/informal markets, the strain experienced by

entrepreneurial young people within an area of limited opportunities with gangs and ganginvolvement. Thus the gang label and attempts to apply it to the young Asian people within

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this study, serves to filter out or silence those more plausible explanations for the complex, multi-layered socio-economic problems experienced within our research communities and how this impacts upon the identities and experiences of young people. In addition, and similar to Hall et als black mugger of the 1970s, the gang-involved with its basis in a foreign (albeit American) culture implicitly signifies difference, something alien to English communities. The fact that the research areas were those where predominantly Pakistani or Bangladeshi young people reside points towards the ethnicisation of crime and particularly the emergent behaviours in Northville. What is concerning is that the label arises as a transcendental signifier as a means through which the behaviours of the young BAME people are all at once identified, acknowledged and problematised, relegating all other explanations for the conditions inherent within the community. Poynting et al (2001; 2004) detail how a moral panic in the 1990s in South-Western Sydney around ethnic minority gangs resulted in the criminalization of large sections of its Middle Eastern community. They note how the misreading and oversimplification of complex social realities led to the labelling and targeting of immigrant young people. It was noted how the wider problem of youth crime was racialised, which legitimised a law and order crackdown, with detrimental effect on police/community relationships. More recently, White (2008: 140) has noted the Australian media fixations with ethnic youth gangs. He draws attention to a body of research that indicates a similar significance of ethnicity in how gangs are socially constructed in Australian cities (Collins et al. 2000; Foote 1993; Poynting et al. 2004, White et al. 1999). We argue that gang terminology uttered by the emerging gang industry has similar capabilities to criminalise ethnic minority communities in the UK.

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Risk TalkThe Politicisation of Risk Gangs are now increasingly synonymous with high risk of harm. As such, modern powers enacted to control the problem of gangs are on a par with current strategies for managing dangerous offenders; for example the sexual offender. This framing of youth activity as gang related activity escalates their behaviour to a higher level of risk, which in turn intensifies levels of surveillance and justifies more stringent forms of intervention and monitoring. Under the guise of protecting the public, control agencies devise and develop strategies to reduce, contain or manage the risk posed by problematic individuals and populations (Garland 2001, Kempshall 2006, Feeley and Simon 1992). Contemporary crime control strategies then encapsulates risk and risk management techniques as managerialist tools for maximising efficiency, accountability and consistency in the effective allocation of resources to communities and individuals identified as presenting with high levels of criminogenic need and conversely, the greatest level of risk. Yet contrary to the

contemporary criminal justice belief, the assessment of risk is not the neutral, objective science that its proponents would suggest. Gelsthorpe and McIvor (2007) and HannahMoffatt (2010) have consistently deconstructed the risk fallacy and highlighted the serious implications of risk strategies for women and BAME people who encounter the Criminal Justice System. As with our findings, where the control agencies resources to tackle drugs and drug-supply were not appropriate then there was a shift towards redefining the problem that inadvertently inflated the risk posed by certain groups and communities, as a means of strengthening calls for increased resources. Of particular concern then is the confluence of gang speak with risk talk to form an irrefutable discourse that provokes crime control responses for the identification and management of problematic behaviours and communities - in this instance the Asian gang (Faulkner 2007).

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Critically, it is the employment of risk talk that enables the control agencies to apportion and attribute blame upon the research communities as at risk or on the periphery of gang problems and hence necessitating criminal justice intervention. Within our study, the

employment of gang speak and risk talk act as a cultural key, enabling the gang label to be uncritically applied to the young people whose behaviours are constructed as a threat to Northville law and order. This interpretation recasts risk from the actuarially anodyne towards a process where risk and blame combine as attributes for problematic individuals, groups and communities. The reclassification and labelling of the research areas as having a violent gang problem then increases risk. However as we will see the stigmatic effects of gang speak and risk talk links with a particular vehemence to visible, feared or despised minorities (Spark 2000:5).

Risk Talk, Gang Speak and Ethnic Minority Groups In comparison with their overall proportions in the population of England and Wales, BAME young people have been identified as disproportionately represented throughout the agencies of the criminal justice system. Criminology demonstrates this overrepresentation from the use of stop-and-search through to the proportions of BAME people within the prison population (Bowling and Phillips 2005, Durrance and Williams 2003).

In relation to gangs young BAME people and in particular men, are increasingly on the receiving end of strategies to tackle the problem of the gang, increasingly contributing to a media and populist discourse conflating ethnicity with gangs. With specific reference to Muslims, Mythen et al (2009: 5) reminds us that racism and discrimination against Muslim groups is an endemic problem enduring time and place. Risk talk feeds the media construction of young British Asians as connected to violent crime, honour killings, drugs,

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illegal immigrants and fraudulent welfare claimants. More recently, young Asian men have come under attack as being involved in the systematic sexual abuse of young white vulnerable women. It is within this context that the young Asian male is constructed as a particular threat to white British culture through the transgression of cultural norms and the Asian gang is a further manifestation of the alleged threat that they pose.

Current practices such as the development of gang databases appear to confirm the media driven public fears. Importantly, the people who are recorded on these databases may not have committed offences, or expressed behaviours related to gang involvement or membership. Despite this, derived through police intelligence, the information is used to inform strategy and approaches for working with those identified, associated or flagged as gang-involved or as a gang-concern. Therefore, the arrangement of mug shot

hierarchical gangs within the police station of Northville serves to embody and reinforce the belief in gangs, even where the police officers concede that the young BAME people on display are not necessarily in gangs (police officer).

The incursion into the lives of young BAME people identified as gang-involved or at risk of gang involvement occasions a disregard of the rights of young people so classified. Although there are an increasing number of dissenting voices from within the criminal justice agencies at the disproportionate sentences and incapacitation strategies increasingly being disposed upon young BAME people identified as gang-involved. The stigmatic effect of the gang label, the inflation of risk and the imposition of punitive court disposals can have a profound impact in curtailing the life opportunities and chances for many young BAME people who become ensnared within the gang-risk net. The attribution of the label gang we argue, has significant implications for those who are so defined.

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Conclusion Our research established drug dealing markets and other criminal activity. However,

entrenched criminality is not indicative of gangs, as Hobbs (2001) has indicated; informal, heavily localised social systems enabling criminality have been well-established features of urban Britain for many decades. Significantly, in contrast to currently accepted definitions, the research found no evidence that young people in Northville had a distinct identity and crucially did not define themselves as discernable gangs. Many of these social systems involved members of extended family networks and in some cases family networks rather than peer groups/gangs appeared to be factors that are more dominant. Our findings also points towards the perennial challenge of gang definitions (Decker and Kempf-Leonard, 1991). The contrasting views to emerge between the young people, community and the control agencies highlights the complexity of the gang in the UK and further problematises the responses of criminal justice agencies. Conflating acute socio-economic problems,

ethnicity, drug dealing and violent crime with gangs is imprecise. Further, if communities employ gang labels as a means of exploiting funding opportunities, this is hugely problematic and concerning. Taken together, it is our assertion that the focus of this research upon predominantly Asian communities results from the unproblematic adoption of gang speak and risk talk. The unchecked continuation of this empirically unsound approach to

addressing the socio and criminogenic needs of marginalised young BAME people and communities will only serve to accentuate the very problems that they seek to eradicate. These communities become further marginalised and stigmatised, and encounter antagonistic relationships with authority, especially the police. The recent austerity measures have had a profound effect on youth provisions across the UK and as such, the current climate of cuts and withdrawal of mainstream funding places further strain on already limited youth and

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community provisions. In contrast, the Coalition Government has recently announced 18 million to tackle gangs and related violent crime in the next two years, with the Communities Against Guns, Gangs and Knives (CAGGK) fund providing 4 million for the voluntary and community sector (May 2011). The funding criteria focuses on voluntary sector organisations working with young people at risk of involvement in gang, gun and knife crime. We predict that these disadvantaged communities will undoubtedly find more gangs in the absence of other viable funding streams that will further perpetuate the cycle of gang speak and elevation of risk.

References Aldridge J,; Medina J and Ralphs R (2008) Dangers and problems of doing 'gang' research in the UK. In F. van Gemert, D. Peterson and I L. Lien. Street gangs, migration and ethnicity. Cullompton: Willan: 31-46. Alexander C (2000) The Asian gang: Ethnicity, identity and masculinity. Oxford: Berg. Alexander C (2008) (Re)thinking gangs. Runnymede perspectives. London: The Runnymede Trust. Bennett T and Holloway K (2004) Gang membership, drugs and crime in the UK. British Journal of Criminology 44(3): 305-323. Cohen S (2002) Folk devils and moral panics (3rd ed.) London: Routledge. Collins J, Noble G, Poynting S and Tabar P (2000) Kebabs, kids, cops and crime: Youth ethnicity and crime. Sydney: Pluto Press.

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Davies A (1998) 'These viragoes are no less cruel than the lads': Young women, gangs and violence in late Victorian Manchester and Salford. British Journal of Criminology 39(1): 7289. Davies A (2008) The gangs of Manchester: The story of the scuttlers, Britains first youth culture. Preston: Milo Books. Decker S and Kempf-Leonard K (1991) Constructing gangs: The social definition of youth activities. Criminal Justice Policy Review. 5(4): 271-291. Douglas M (1992) Risk and blame. London: Routledge. Durrance P and Williams P (2003) Broadening the agenda around what works for Black and Asian offenders, Probation Journal 50(3): 211-24. Faulkner D (2007) Prospects for progress in penal reform. Criminology and Criminal Justice. 7(2): 135-152. Feeley M and Simon J (1992) The new penology: Notes on the emerging strategy of corrections and its implications. Criminology 30:449-474. Foote P (1993) Like, Ill tell you what happened from experience...perspectives on ItaloAustralian youth gangs in Adelaide. In R. White (ed) Youth subcultures: Theory, history and the Australian experience. Hobart: National Clearinghouse for Youth Studies. Garland D (2001) The culture of control: Crime and social order in contemporary society. Oxford: Oxford University Press. Gelsthorpe L and McIvor G (2007) Difference and diversity in probation. In L. Gelsthorpeand R. Morgan (eds) Handbook of probation. Devon: Willan Publishing.

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Hallsworth S and Young T (2008) Gang talk and gang talkers: A critique. Crime Media Culture 4(2): 175-195. Hannah-Moffat K and Maurutto P (2010) Re-contextualizing pre-sentence reports, risk and race. Punishment and Society 12(3): 262-286. HMIPP (2010) The management of gang issues among children and young people in prison custody and the community: A joint thematic review. HM Chief Inspectorate of Prisons, HM Chief Inspectorate of Probation, and HM Chief Inspectorate of Constabulary. Hobbs D (2001) The firm: Organizational logic and criminal culture on a shifting terrain. British Journal of Criminology 41(4): 549-560. Home Office (2008) Tackling gangs. A practical guide for local authorities, CDRPS and other local partners. London: Home Office. Kempshall H (2006) Social policy and risk. In: G. Mythen and S. Walklate (eds) Beyond the risk society: critical reflections on risk and human security. England: Open University Press. Maxson C L, Hennigan K M and Sloane D C (2005). "It's getting crazy out there": Can a civil gang injunction change a community? Criminology and Public Policy 4: 577-606. May T (2011) Funding to tackle knife, gun and gang crime. Home Office Circular 2nd February 2011. London: Home Office. Mythen G, Walklate S and Khan F (2009) Im a Muslim, but Im not a terrorist: victimisation, risky identities and the performance of safety. British Journal of Criminology 49(6): 736-754. Pitts J (2008) Reluctant gangsters: The changing face of youth crime. Cullompton: Willan.

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Poynting S, Noble G and Tabar P (2001) Middle Eastern appearances: Ethnic gangs, moral panic and media framing. Australian & New Zealand Journal of Criminology 34(1): 67-90. Poynting S, Noble G, Tabar P and Collins J (2004) Bin Laden in the suburbs: Criminalising the Arab other. Sydney: Sydney Institute of Criminology. Ralphs R, Medina J and Aldridge J (2009) Who needs enemies with friends like these? The importance of place for young people living in known gang areas. Journal of Youth Studies 12(5): 483-500. Spark R and Hope T (2000) Crime, risk and insecurity. Oxon: Routledge. Stewart G (1998) Black Codes and broken windows: The legacy of racial hegemony in antigang civil injunctions. Yale Law Journal 107(7): 2249-2279. Thrasher F (1927) The gang: A study of 1,313 gangs in Chicago. Chicago: New Chicago School Press, Inc. Wacquant L (2001) The penalization of poverty and the rise of neo-liberalism. European Journal on Criminal Policy and Research 9: 401-412. White R, Perrone S, Guerra C and Lampugnani R (1999) Ethnic youth gangs in Australia: Do they exist? (seven reports Vietnamese, Turkish, Pacific Islander, Somalian, Latin American, Anglo Australian, Summary Report). Melbourne: Australian Multicultural Foundation. White R (2008) Weapons are for wimps: The social dynamics of ethnicity and violence in Australian gangs. In: F. van Gemert, D. Peterson and I L. Lien (eds). Street Gangs, Migration and Ethnicity. Cullompton: Willan: 140-55.

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Young T, FitzGerald M, Hallsworth S and Joseph I (2008) Groups, gangs and weapons. London: Youth Justice Board. Acknowledgements We would like to thank the local authority for commissioning this research. We are also grateful to a large number of local community groups and individuals for their information, insight and access to the areas in which they live. Their candid views and opinions coupled with their willingness to spend time familiarising us to the area and generally hanging around with us made the research possible.

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Vietnamese Communities, Crime Prevention and Drug Trafficking in Victoria James Scambary Swinburne University of Technology Email: jscambary@groupwise.swin.edu.au

Prof Denise Meredyth RMIT University Email: denise.meredyth@rmit.edu.au

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract Drawing on research for a four-year project: Exploring the experience of security in the Australian Vietnamese community: practical implications for policing,4 this paper examines the perspectives of the community outreach and legal sectors on policing the drug trade. It makes the argument that current zero tolerance policing strategies sit at odds with more preventative, community led approaches; that apart from raising questions of human rights breaches, such strategies risk alienating the mainstream Vietnamese community, thereby hampering attempts to address other sources of insecurity within that community and potential access to intelligence on more serious crimes.

The authors would like to thank fellow researchers Helen McKernan and Richard Evans to this paper, who played central roles in this research project; this paper draws on elements of working papers to which they contributed. We would also like to acknowledge the support of the Australian Research Council and of Victoria Police, the generous involvement of Vietnamese Australian community members and members of the social services and justice services who spoke with us, and the contributions of CIs on this large collaborative project, including Prof Trang Thomas, Prof Nita Cherry, Dr Leanne Weber and Prof Michael Gilding. None of these collaborators are responsible for our errors or misunderstandings.

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Introduction This paper is drawn from research for a four-year ARC Linkage Project: Exploring the experience of security in the Australian Vietnamese community: practical implications for policing. Both the Victorian Police and the Australian Vietnamese Womens Welfare Association (AVWWA) were primary project partners. The intention of the study, conducted between 2008-2011, was to improve cooperation and trust between the Victoria Police and the Vietnamese community and to understand the safety and security issues for Vietnamese Australians. The project was conducted in three Victorian PSAs with high Vietnamese populations: Maribyrnong, Yarra and Springvale. The project team conducted 89 interviews with police, community outreach and legal sector professionals working with predominantly Vietnamese clients, Vietnamese injecting drug users (VIDUs) and 11 focus groups with Vietnamese Australian men and women.

Early discussion between the researchers, police and Australian Vietnamese community members indicated that despite the efforts of police to build closer relations with the Australian Vietnamese community, communication has been minimal, with low levels of trust on each side. Police agencies acknowledge that many officers associate Vietnamese ethnicity with high crime rates, gambling, drugs and anti-police sentiments. Community groups, for their part, expressed strong concerns about crime rates, gambling and violence but report limited confidence in the polices ability to intervene, protect the community and prevent crime. But while a range of crime issues have been of concern to both the Vietnamese Australian community and the police, drug related crime has been at the forefront of community insecurity and policing efforts, and a key source of friction.

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This paper focuses on the views of outreach and legal sector professionals (19 out of 23 were Vietnamese) from this study on policing of drug crime in the Vietnamese community . The central concern of this paper is the paradox between the Vietnamese communitys demand for tougher action on drug crime and the police methods used to combat it; whether zero tolerance policing is impacting on already low trust levels of the police and undermining longer term community engagement strategies.

Background The Vietnamese have generally been viewed as successful immigrants to Australia: hardworking, productive and committed to education, with each generation more integrated into Australian community life. But the strains of war and refugee trauma, as well as resettlement issues, including challenges to traditional patriarchal social structures, have contributed to family breakdown, domestic violence and, for some, a cycle of poverty and crime (Bui and Morash, 2008; NSW Vietnamese Womens Association, 1994). By the mid 1980s, sections of the Australian Vietnamese population in urban Melbourne also became associated by law enforcement agencies with patterns of criminal activity in drugs, gambling and extortion. The Vietnamese community became concerned about the impact of the drug trade on their businesses, personal safety and the image of their community as a whole. There were obstacles to effective police action, however. Witnesses were reluctant to speak, available information was fragmented and police lacked understanding of Vietnamese people and their culture (Phillips et al, 1987, Evans, 2009). Police then launched a number of initiatives in response to these concerns and to redress the lack of engagement with and understanding of the Vietnamese community. These approaches have been informed by a wide number of policing traditions, spanning the full spectrum from soft community oriented approaches to hard zero tolerance policing (ZTP).

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Zero tolerance policing is a largely rhetorical term that refers to a policing strategy that encompasses a range of methods, but with the common elements of a vigorous law enforcement approach to even minor transgressions; the setting of crime reduction targets; and in particular, the use of periodic intensive or saturation policing campaigns or crackdowns (Newburn and Jones, 2007; Greene, 1999).

Community policing or community oriented policing (COP) as it is sometimes known, is considerably harder to define than ZTP, its implementation varying over time and in application by different police agencies. It can, however, be broadly be taken to mean greater community involvement in crime prevention, (Weisburd and Eck 2004) but can also mean merely more police visibility (Reisig and Parks, 2004) or the permanent assignment of police to a neighbourhood to build relationships (Goldstein, 1987).

As Patterson notes (in Famega, 2009), however, these two approaches cannot simply be divided into pro-active or re-active models as there are a variety of shades in between and combinations of the two. With problem oriented policing strategies such as pulling levers, for example, the two approaches are used to complement each other (Corsaro, Brunson and McGarrell 2009), so they are not necessarily mutually exclusive. In the way they have been applied to the Vietnamese community in Melbourne, they appear to have been used in isolation to each other, with predictable outcomes.

Operation Bao Ve, implemented in 1985, was an early example of a cooperative approach by the Victorian Police to build community relationships with the Vietnamese community and encourage them to report offences (Victoria Police, 1987). Vietnamese traders

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cooperated with police to largely eliminate Vietnamese gang related protection rackets and this operation resulted in a number of successful prosecutions. Bao Ves efforts were

extended by the Asian Division, later the Asian Squad, formed in 1989 (Harvey, 1989). The Asian Squad grew rapidly to 22 staff by 1999, including a Vietnamese translator and two police with fluency in Vietnamese (Police Life, 1999). However, the name Asian Squad was a cause of resentment among members of the Vietnamese community, and publicly criticised as evidence of prejudice on the part of police. A focus on the problem of drug trafficking as a Vietnamese concern was considered self-reinforcing research indicated that young Vietnamese and other youth of Asian appearance were more likely than offenders from other backgrounds to be arrested by police for drug dealing (Beyer et al, 2002). Such patterns perpetuated a suspicion of authority within the Vietnamese community.

In 1990, concerns over drug related crime voiced by the Footscray Vietnamese community led to the development of a Footscray Council Ethnic Police Unit in 1990, with cooperation and funding from the Vietnamese traders and Footscray Council. Equipped with a separate office and its own vehicles, this unit was dedicated to a non-confrontationist method of policing that would garner greater trust and cooperation with local ethnic communities and enhance security. An informal evaluation of the program found it had raised public perceptions of safety, established links with and between the Asian traders and Footscray City Council and between Footscray traders and the police, resulting in a flow of intelligence and reporting about crime. While police still maintain contact with traders this project was discontinued after a few years (Tuck 1995).

In recognition that lowering drug use can also lower drug crime, in more recent times police have also formed partnerships with health service providers and signed commitments to harm

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minimisation principles (DHS 2008). One such agreement operates between the North Richmond Community Health Centre (NRCHC) and the Richmond Branch of the Victorian Police, who have agreed to co-locate an NRCHC counsellor at the Richmond Police station.

Zero tolerance approaches such as police crackdowns such as Operation Clean Heart on the Foostcray street heroin trade (Aitkin et al 2002) or the ongoing, cyclical Operation Elizabeth crackdown in Richmond, operate at the other end of this spectrum. During Operation Clean Heart, for example, an area of the Footscray central business district was subjected to saturation policing with an extra 18 officers brought in for the operation. Any person suspected of intending to sell or procure drugs was stopped and searched and if found guilty or suspect, was either arrested or expelled from the area, often through the use of exclusion orders (Aitkin et al. 2002). Operation Elizabeth utilises similar tactics, including drafting in extra police from outside jurisdictions, with the difference that it takes place within a highdensity high rise housing commission complex with a large Vietnamese population.

While overzealous police crackdowns have the potential to alienate any community, small migrant communities are particularly sensitive to such treatment due to their size and networked nature. This is certainly true of the Victorian Vietnamese community. The Vietnamese community in Victoria is highly diverse, differentiated by a number of factors including age, generation, class, religion, length of residence in Australia and ethnicity (Vietnamese-Chinese, for example, comprise a significant sub-group within the Vietnamese community, or as a separate group altogether). Nonetheless, like many small immigrant or refugee communities, the Vietnamese Australian community is highly networked, for a number of reasons. Chain migration, whereby family members are sponsored to migrate, creates sometimes quite substantial extended family structures, As Zhou claims (1994),

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although nuclear families are important in the Vietnamese community, they do not function in isolation. Rather, they are contained in a web of social and kinship relations. The social capital afforded by such networks provides a vital support system and adaptive advantage for migrants and refugees (1994). There are also non-kinship networks such as through close bonds formed with other unrelated families during extended periods in off shore transition camps, migrant hostels in Australia or with other newly arrived neighbours in the densely packed housing commission estates.

Like many immigrant communities, Vietnamese Australian refugees have settled in areas close together to live near other family members, to take advantage of facilities in their own language and opportunities in the formal and informal economy afforded by family connections. A theme that repeatedly came through in interviews for this project was that in these areas, everyone knows everyone. Members of these communities are aware of what is going on within their community, especially through frequent large social events. Funerals and wedding ceremonies are big family events, where people go not just to participate in the occasion but also to exchange news (Zhou 1994: 832). Regular Buddhist Temple and Church gatherings also offer further avenues of information sharing. Accordingly, a number of sources interviewed for this study alluded to how negative media coverage of police corruption or mistreatment of members of the Asian community had been discussed widely in the Vietnamese community, such as the death of a Chinese man at Dandenong police station in 2010.5 Therefore, news, or just rumours of police mistreatment of members of the Vietnamese community circulates rapidly and pervasively, potentially alienating the very community they are trying to protect and rely on for intelligence.

5

Second death in six months after arrests Paul Millar, The Age May 26, 2010

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Invasive policing methods used in crackdowns, as evidenced in interviews for this study, were a significant source of community alienation, generating feelings of being targeted and perceptions of racial profiling (the use of race as a criterion in police decisions to stop and interrogate citizens) (Weitzer 2002). As Weitzer points out, while there are few statistics to justify the feeling of being profiled, the perception of being profiled can be just as important as the reality (2002). Many of the interviews reported perceptions of police profiling of the Vietnamese community. One source, a businessperson, described how when he drove his friends new car, he was frequently pulled over by police, compared to when he just drove his own old Holden. This phenomenon, he believed, was driven by a stereotype that any young Vietnamese driving a new car must be a drug dealer. Interviews and focus groups also revealed numerous examples of where overzealous policing had led to indiscriminate targeting of young people. There were a number of personal accounts of people being stopped and searched (in one case strip searched) when they were just doing their job as outreach workers, or in one case, while attending a Christmas work function. Such perceptions of police profiling and discriminatory treatment, of young people in particular, were cited in a 2001 NSW State Parliamentary inquiry into Cabramatta policing as one of the key factors that led to a breakdown in police relations with the Vietnamese community there (NSW Government 2001).

Another factor cited in that report as contributing to a breakdown in the Vietnamese communitys relations with the police was police mistreatment of the Vietnamese public and cultural insensitivity. This study heard a number of accounts in interviews and focus groups of police mistreatment of the public; sometimes as collateral damage in the campaign against drug crime, but sometimes through every day interactions. One source spoke of police confiscating money from community members during raids in the belief that it was the

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proceeds of drug crime, when in fact it was life savings. The Hui system or investment clubs, entails the storage of often large sums of money in the home but apart from Hui, as described by a number of respondents, there is a widespread cash economy within the Vietnamese community partly due to mistrust of banks and also due to the fact that many people cant get bank accounts or credit cards due to lack of stable employment records, credit history and other factors.

Interviews also described cases of family members being caught up in police searches for drug dealers. One source claimed that often family members, even parents, are suspected of collusion with the drug user they are seeking and are verbally abused, assaulted or otherwise mistreated with housing and possessions sometimes damaged. One Vietnamese social worker described how an elderly Vietnamese client had been traumatised by repeated police raids in search in search of her son and his drug cache, in which she was pinned down on the floor and verbally abused, her house ransacked and the door smashed in on a number of occasions.

Despite the stigma of drug crime attached to the Vietnamese community, attitudes towards illicit drug use and control measures are ironically generally more conservative in the Vietnamese community than in the general population. Concerns about crime issues surrounding drug use figured strongly in focus groups in this study but while a number of sources voiced the sentiment that there should be tougher action against drug crime, that the justice system was too lenient, this support for harsher methods was conditional. Many Vietnamese have also been affected by family members drug use and while some VIDUs have been alienated from the community, many are still part of that community. Some sources expressed the view that they would like to see drug users and dealers locked up so they could dry out, rehabilitate their lives and return to their families. They were adamant,

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however, that this did not translate into support for police mistreatment of drug users, which they believed eroded trust and police legitimacy.

Such practices would inevitably raise comparisons with police in Vietnam; earlier interviews indicated that police tend to assume that low Vietnamese trust in the police is due to migrant memories of dealings with police in Vietnam. But as one Vietnamese community leader for this study claimed, second generation Vietnamese had no experience of Vietnamese police back home; they had acquired their distrust here. This nexus between experience of Vietnamese police and mistrust of Australian police has also been questioned by others. As identified in the Cabramatta inquiry, the Vietnamese community expect the police to operate within the rule of law, and the argument that Vietnamese equate policing operations with activities in their home countries is a simplistic analysis that verges on being racist (NSW Government 2001). Public perceptions of police legitimacy, especially in its application of procedural justice, is a key factor in public cooperation, a contention is supported by a recent Deakin study on policing ethnic minority groups (2010).

The gap between policing traditions appeared to be almost a generational gap, with a clear perception among a number of sources that the older, more experienced officers with a knowledge of social issues behind the drug trade and cross cultural training are now desk based, with street level policing conducted by inexperienced younger, more junior officers. The latter perception is supported by the fact that most drug policing is carried out by unspecialised police, with the consequence that the bulk of people arrested for drug crimes are user dealers, at the lowest end of the scale (Maher 1999. Therefore the effectiveness of using such inexperienced officers as shock troops in drug policing should be measured against the long term impact on community relations.

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A Victorian state government report noted more than 15 years ago that there is need for a more systematic and sustained program of community policing and inter-agency cooperation with respect to drug use, particularly at local and district level. It also noted, however, that such work is not highly valued in the Force, and that officers involved received neither adequate career recognition nor sufficient resourcing for their efforts (PDAC 1996). The 2001 Cabramatta Report (NSW Govt. 2001) noted that a similar inconsistency in approach had led to the poor state of relations, at that time, with the Vietnamese community, with a number of senior serving police officers venting their frustration at this lack of consistency and commitment to maintaining relationships with the community.

With police attention now turning to more recent refugee communities, there is a danger that the Vietnamese community and its crime issues may be yesterdays concern, although there are many common lessons which can be applied with the newer refugee communities. On current trends, however, drug use, and associated public safety issues, are by no means diminishing within the Vietnamese community, and new forms of organized crime have emerged, underscoring the need for sustained, consistent approaches to engagement with the Vietnamese community and health providers. While there is a case for, and indeed even a demand from the Vietnamese community for reactive policing methods, it was made clear in this study that such methods should be implemented in a sensitive and humane manner and should not be at the expense of more community oriented methods that take account of the complex social basis for drug use and related crime, and the place of VIDUs in the Vietnamese community.

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References ACU/Centacare (2008) Support needs of Vietnamese families of drug users Melbourne. June. Aitken C, Moore D, Higgs P, Kelsall J and Kerger M (2002) The impact of a police crackdown on a street drug scene: Evidence from the street. International Journal of Drug Policy 13(3): 193-202. Alfred Deakin Research Institute (2010) Policing ethnic minority groups with procedural justice: An empirical study. Working Paper No. 02. April. Beyer L, Crofts N and Reid G (2002) Drug offending and criminal justice responses: Practitioners perspectives. International Journal of Drug Policy 13: 203-2. (2002) Ethnic based differences in drug offending. International Journal of Drug Policy 13: 203-11. Corsaro N, Brunson R K and McGarrell E F (2009) Problem-oriented policing and open-air drug markets: Examining the Rockford Pulling Levers Deterrence Strategy. Crime & Delinquency XX(X): 123. Department of Human Services (2008) (internal updated version of 2001 policy) Victorian needle and syringe program: Operating policy and guidelines. Department of Human Services. pp. 49-51. Drug and Alcohol Multicultural Education Centre (2008) Alcohol and other drug use, attitudes and knowledge amongst the Vietnamese community in Sydney. Report 5/6 Sydney, November.

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Dixon D and Maher L (2002) Anh Hai: Policing, culture and social exclusion in a street heroin market. Policing and Society 12(2): 93-110. (2005) Criminal policing, crime and public health: Lessons for Australia from the 'New York miracle'. Justice 5: 115. Evans R (2009) Exploring the experience of security in the Australian Vietnamese community: Practical implications for policing. Victoria police and the Vietnamese Australian community in Victoria: A brief history. Melbourne: Institute for Social Research, Swinburne University of Technology. Working Paper 5, ARC LPO776899. Famega C N (2009) Proactive policing by post and community officers. Crime & Delinquency 55: 78. Goldstein H (1987) Toward community-oriented policing: Potential, basic requirements, and threshold questions. Crime & Delinquency 33(6): 6-30. Greene J (1999) Zero tolerance: A case study of police policies and practices in New York City. Crime and Delinquency 45(2): 171-187. Harvey R (1989) Saving face Police Life. 67. Kibria N (1994) Household structure and family ideologies: The dynamics of immigrant economic adaptation among Vietnamese refugees. Social Problems 41(1): 81-96. Morabito M (2010) Understanding community policing as an innovation: Patterns of adoption. Crime & Delinquency 56(4) 564-587. Maher L and Dixon D (2001) The cost of crackdowns: Policing Cabramattas heroin market. Current Issues in Criminal Justice 13(1).

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(1999) Policing and public health: Law enforcement and harm minimisation in a street level drug market. British Journal of Criminology 39(4). National Drug Law Enforcement Research Fund (NDLERF) (2004) The role of police in preventing and minimising illicit drug use and its harms. Commonwealth of Australia. Newburn T and Jones T (2007) Symbolizing crime control: Reflections on zero tolerance. Theoretical Criminology 11(2): 221243; 13624806. NSW Government (2001) Report on inquiry into Cabramatta policing. Parliamentary Paper No. 864 NSW Legislative Council, General Purpose Standing Committee No. 3. NSW Vietnamese Womens Association (1994) Between two cultures: Vietnamese women in Australia (Phu Nuu Viet Nam Giuua Hai Giong Van Hoa). Sydney: NSW Vietnamese Womens Association. Ngo N (2010) The white path: The experiences of young Vietnamese-Australian heroin users returning to their homeland. Unpublished PhD thesis Melbourne: RMIT. Phillips P C and Jones C H et al. (1987) Operation Bao Ve : A profile of Vietnamese gang activity in Victoria 1982 to 1986. Melbourne: Victoria Police. Police Life (1999) Asian connection: Talking the talk takes on an entirely new meaning for police dealing with Victoria's Asian communities. Police Life. Reisig M D and Parks R B (2004) Can community policing help the truly disadvantaged? Crime & Delinquency 50: 139. Tuck D (1995) A case study of police ethnic relations in Footscray, Victoria. Canberra: Australian Institute of Criminology, Multiculturalism and the Law Series.

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Victorian Government (1996) Drugs and our community. Report of the Premiers Drug Advisory Council, Victorian Government, March. Weisburd D and Eck J E (2004) What can police do to reduce crime, disorder, and fear? The Annals of the American Academy of Political and Social Science 593: 42. Weitzer R and Tuch S (2002) Perceptions of racial profiling: Race, class, and personal experience. Criminology 40(2): 435-456. Zhou M and Bankston C (1994) Social capital and the adaptation of the second generation: The case of Vietnamese youth in New Orleans. International Migration Review 28(4): 821845.

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The Penumbra of the Policing Mandate: The Case of the South African Police Service

Rika Snyman School of Criminal Justice, College of Law, University of South Africa, Florida, South Africa Email: rsnyman@unisa.ac.za

Conference sub-theme: Policing, Investigation and Intelligence in Social Democracies

Abstract This presentation challenges the move towards neo-liberalism in policing in South Africa, despite the fact that the mandate of the South African Police Service is grounded in the principles of socio-democracy. This creates tension between the manner in which police officials are expected to conduct their work and their legal mandate. The aim of the paper is to provide an insight into the extent to which the current mandate of the SAPS evolved from its intended socio-democratic roots into a neo-liberal law enforcement approach and the need to return to its roots. A penumbra is the border region of half-shadow resulting from the partial obstruction of light by an dense object and is the point where light and shade blend and symbolizes the tension between neo-liberalism and socio-democracy in policing in South Africa.

Key terms: socio-democracy, neo-liberalism, mandate of the police

Introduction The South Africa Police Service (SAPS) finds itself in the penumbra of dealing with extremely high levels of crime, particularly violent crime. The official statistics reveals that
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during 2009 and 2010 just over two million serious crime cases were registered, of which a third were contact crimes. Allegations of extensive police brutality (Hosken, 2011:1), the wrongful use of force, poor investigation of crime and criminal elements within the ranks of the SAPS are leveled at the police on a daily basis. Police brutality is becoming a major concern, as it is a symptom of a robust results-driven policing approach. Between April 2009 and March 2010, the police assaulted 1 667 people, an increase from the 1 578 between 2008 and 2009 and the 1 380 from 2007 to 2008. This is in sharp contrast with 224 in 1998 and 380 in 1999 (Rawoot, 2011). Bruce and Faull (Hosken 2011:1) are of the opinion that the training that police officials receive are a paper pushing exercise to get as many police to the streets as quickly as possible, with focus on numbers rather than quality. Although individual police officials have to face the consequences of their behaviour individually, experts such as Bruce and Faull (Hosken 2011:1) and Burger (2010) put the blame on the lack of clarity when management communicates with police officials on the ground on their approach to dealing with crime. Unrealistic demands are made on police officials to reduce crime, forcing them to take shortcuts, discouraging victims to report crimes and even torturing suspects to obtain information on crime and "At leadership level there is an attitude that these things are necessary to get things done (Rawoot, 2011).

This presentation sets out to discuss and analyse the official mandate of the SAPS by looking at its origin, the manner in which the mandate shifted over the past two decades and the unrealistic demands placed on police officials to prevent crime. The policing context was sketched in terms of the type of society which needs to be policed and concluded that there is a need for policing to return to its socio-democratic approach, as entrenched in the South African Constitution. This presentation is based on an analysis of a range of literature sources

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which includes the legal foundation of the SAPS, seminal publications and expert voices on the chasms which exist in policing in South Africa in 2011. The aim of the paper is to provide an insight into the extent to which the current mandate of the SAPS evolved from its intended socio-democratic roots into a neo-liberal law enforcement approach and the need to return to its roots, thus avoiding the current penumbra if finds itself in.

The Mandate of the South African Police Service Seven years after South Africa emerged from the shackles of apartheid, Gordon (2001) warned that the macroeconomic strategy adopted by the government during the early years of the new-found democratic dispensation, would lead to punitive solutions to rampant crime and seems likely to contribute to aggressive law enforcement. The political slogans more cops less crime and Tough on crime, tough on the causes of crime were uttered by individuals who represented the victims of apartheid but unwittingly echoed the neo-liberalism stance of Margaret Thatcher and the New Labour government in the UK in the early 1990s (Reiner, 2005). In reading Burgers (2010) reflection on the changes and developments within the South African Police Service during 2009 and 2010, Gordons warning sadly seemed to have come true.

Legal Foundations of the South African Police Service Mandate The South African Police Service forms part of the public administration of the Republic where the democratic values and associated principles of transparency and efficiency mirrors the content of the Constitution, namely:

the founding provisions of the Constitution (Chapter 1);

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the values and principles contained in the Bill of Rights (Chapter 2 of the Constitution);

the democratic values and principles governing public administration (section 195(1) of the Constitution);

other values and principles and enshrined elsewhere in the Constitution (section 195(1) of the Constitution);

The values which underpin the mandate of the SAPS are constructed mindful of sociodemocratic principles. Socio-democracy recognizes individual rights through constitutional methods and distinguishes itself by its opposition to capitalism and communism. It purports that political democracy be expanded to include social and economic democracy, thus resulting in an equal, fair and just society (Carlsson & Lindgren, 2007). Ferguson (2008, 20) views social democracy as the only vehicle which can reconcile a well functioning capitalist system, democracy and social stability, thus forming the building blocks of a free, equal and fair society. Social democracy is thus an affirmation of the right of all individuals to share equally in the best that the society can technically be capable of engineering.

The fundamental values of social democracy namely that of freedom, equality and brotherhood (Carlsson & Lindgren, 2007: 21) is echoed in the National Crime Prevention Strategy (NCPS) as it provided a shift away from crime as a security issue to crime as a social issue (Bruce & Gould 2009: 13-20). The architects of this strategy recognize that South Africa should look beyond mono-causal explanations of the high crime rate and addressing it, by expanding police capacity, towards a multi-dimensional understanding of the complexity of crime. They list the improvement of community values, job creation, welfare safety nets and provisioning for the health, education and development needs of the citizens of South
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Africa among others, as areas which should urgently be addressed alongside improvements to the criminal justice system and environmental design (South Africa 1996b). An analysis of crime during the period in which the NCPS was constructed, indicates that the risk and resilience factors arise from the interplay between individual, familial and societal factors (Bruce & Gould, 2009: 13-20), thus entrenching social crime prevention into the crime prevention arena. This position has not changed in 2011 as the fabric of South African society has not evolved dramatically in the 14 year period.

During the years leading up to the first democratic elections in 1994, South Africa created a framework for a sustainable democracy. Despite the successful democratic scaffolding which was constructed, South Africa fell short of successfully implementing the rights enshrined in the Constitution, chiefly due to weak institutions and the manner in which the Constitution was interpreted (Misra-Dexter & February, 2010: vii-xxiii). The high incidence of poverty, inequality and unemployment make for feelings of insecurity and a cynical outlook on future improvement. Despite major efforts, such as affirmative action, the Reconstruction and Development Plan and black economic empowerment, did South Africa remain as unequal as it had been during the apartheid years, with the psychosocial consequences which were at the core of the crime problem (Altbeker 2008: 39).

A non-racial multiparty democracy was introduced in South Africa in 1994, which heralded in radical changes in all spheres of life, but especially in the manner in which the police was mandated to prevent and investigate crime, maintain law and order and preserve the countrys internal security. The inability to address the crime problem in the past, was voiced by the architects of the National Crime Prevention Strategy as Previous crime prevention initiatives were developed without adequate analysis of the root causes of high crime rates efforts

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have been on stemming the tide and have relied on reactive strategies, primarily through the application of more policing capacity to selected problems (South Africa 1996b:7). This crafting of the role of the police was formalized in the Constitution of the Republic of South Africa and signified the importance attached to policing in the country (South Africa 1996a). The prominence placed on policing was due to the high crime rate in the country, but principally to correct the atrocities which were committed during the apartheid years, under the banner of policing (Newham & Dissel 2010). The emphasis placed on crime prevention and community policing in the negotiating documents during the transition years, pointed to the desire to police the citizens in South Africa in a spirit of consultation and cooperation. The policy makers were adamant that this spirit could be realized in day-to-day policing, as they declared in Section 18(1)(f) of the South African Police Service Act joint problem identification and problem solving by the service and the community as the key to effective policing (South Africa 1995).By changing from a force to a service just after Apartheid ended, renaming the department as the Department of Safety and Security and changing the ranks from military-style ranks to civilian ranks, a strong message was sent out to both the public and the police officials that service provision and cooperation with the community replaces the forcefulness of the past.

The Slip Away from the Socio-democratic Roots In various formal transitionary documents, such as the Ready to Govern document of the dominant political party, the African National Congress, the role and functions of the police were set out where the primary function of the police would be to prevent crime, idealistically expected to be responsible for the safety of every person in the country (Burger, 2007: 69-75 & 84). The requirement placed by the government on the SAPS to drive social crime prevention initiatives, made them effectively responsible for social, economic and

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environmental development. Further to this, did the NCPS soon fail after its implementation, due to an inability by its champions to grasp the intricacies of the nexus between crime and its risk factors, which stifled the steps towards its implementation (Rauch, 2002: 9-22). The major strategic blunder was to locate the NCPS within the Secretariat for Safety and Security, creating the impression that its failure was the fault of the SAPS. Following on this, the SAPS was held responsible for the high crime rate in the country. Despite the recent adoption of sophisticated legislation which speaks to socio-democratic principles, such as the Domestic Violence Act (1998), the Firearms Control Act (2000) and the Child Justice Act (2009), its implementation left much to be desired (Bruce & Gould, 2009: 13-20).

The accomplishment failure could however not be attributed on ignorance of the value of socio-democratic principles on the part of the government, but by poorly executed policies and a lack of a holistic commitment by the relevant government departments to commit themselves to it (Burger, 2010). Social crime prevention was largely left in the hands of the SAPS to implement, yet at the same time shifting the operationalisation of the policing mandate squarely on law enforcement. With the strong emphasis on fighting crime, less focus was placed on the diminishing role that the community should play in social crime prevention. In the meantime the democratizing value of community involvement in preventing crime receded further and further from view.

Neo-liberalism and Policing Neo-liberalism is a concept associated with economics, derived from the ideas of early liberalism as coined by Adam Smith (Raphael & Macfie 1976). Its clear social and moral philosophy stereotypically asks questions such as Why am I here and What is expected from me (Treanor, 2010). The answers to the ubiquitous questions, I am here for the

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market and I am expected to compete flows logically from its source. Treanor further (2010) states the triangular nature of neo-liberalisms ethical precept to be act in conformity with market forces and secondly, within this limit, act also to maximize the opportunity for others to conform to the market forces generated by your action with lastly hold no other goals. This value set permeates through economics to capture society as a whole and enters private life. The first of the three key elements of neo-liberalism, methodological individualism, is embodied in Margaret Thatchers infamous saying that there is no such thing as society, only individuals and families (Ferguson, 2008: 25). The second element, rationality, refers to the tendency of individuals to put their self-interest first and putting the welfare of others on the back burner, with the last element, market supremacy, implying that the best way to organize any society, is around the market. Neo-liberalism has eroded solidarity and created huge divides between the rich and poor in society as it fails to deliver on its metaphor in a rising tide, all boats rise (Ferguson, 2008: 25). Poverty, inequality and insecurity are the bitter fruits that the neo-liberalism tree delivered in countries such as the UK, Chili, New Zealand and now South Africa.

The prevailing liberal philosophy at the time when the notion of policing was conceptualized, placed crime and the rule of law as the key focus. This resulted in a narrow understanding of what the main task of policing was, resulting in locating the prevention of crime within the state. Newburn and Reiner (2007: 910) refer to this as the term police was used then in a much broader way to connote the whole craft of governing social order.

Burger (2007: 42) names the unrealistic demands placed on police to prevent crime, as the impossible mandate of police organizations all over the world. This dilemma is thus not unique to the South African context as it is a malady that police organizations across the

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world, struggle with. The police mandate of police organizations all over the world, is filled with contradictions and Manning (2006: 95) is of the opinion that the policing mandate depicts the maladies of the evolving socio-political order best, because their work sphere which is staked out for them, is unmanageable. It appears as though no one is prepared to reexamine the platitude placed on the police in 1829 by Peels conception of the new police (Crawford, 2007: 866 - 868). Police organizations worldwide inherited this functional impossibility and its unfeasibility is perpetuated in the South African Police Service, despite the socio-democratic foundation of its mandate.

Although neo-liberalism is a term not commonly found in debates on policing, its effects are clearly visible and carry a strong voice. Robert Reiner (2005) reflects on the symbolic contribution that the British police played in the sharp drop in crime in Britain during most of the 20th century and attributes the slump to the effective informal social controls rather than to effective policing. He focuses on the irony of the celebrated slogan during the time tough on crime, tough on the causes of crime as the police had minimal impact on the key drivers of crime, such as long-term unemployment, poverty and poor education. Instead, Reiner (2005) regards neo-liberalism as the crucial cause of crime.

The Neo-liberalism Demands Placed on the South African Police Service During the 2009 presidential election campaign, South African politicians promised to increase the war on crime, which let to decisive changes in the SAPS, further compromising its policing mandate. The newly elected president of the country, President Zuma, met in October 2009 with all the police station commissioners where he made clear that too much emphasis iss placed on service delivery and too little on law enforcement. He hinted at changes to legislation such as the ubiquitous section 49 of the Criminal Procedure

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Act (South Africa 1977) which regulates the powers of police officials to use deadly force, as well as a need to swop the civilian style ranks for military ones. Despite the unconstitutionality of these changes, the change occurred on 1 April 2010 and it was justified as follows:

Police forces around the world are referred to as the Force and their ranks are accordingly linked to such designations. We have taken a stance as this government of fighting crime and fighting it toughthis should not be misinterpreted as merely the militarization of the police but as part of our new approach of being fierce towards criminals, while lenient to citizens safety and maintaining good discipline within the Force (Burger 2010).

After this change, police officials, whose civil ranks were replaced with military ranks, find themselves in the quandary to work in the South African Police Service, mandated to be responsible for social crime prevention, but expected to mainly focus on law enforcement. Minnaar (2010) refers to the inherent dangers of incorporating military principles into policing, especially seen in the light that such a move made no significant impact in reducing crime or improving the effectiveness of the police to resolve reported crime in various countries. Such militarization of the police successfully deteriorates the relationship between the police and the communities in which they work and lowers crime reporting and willingness to assist the police with information on crime. This conflation of the opposing discourses of community policing and the militarization of the police give rise to the position of the SAPS as a segregative mechanism where law abiding citizens are separated from the law breaking citizens, thus augmenting policing initiatives which deter and incapacitate the dispossessed. Altbeker (2008: 45) refers to the nexus between inequality and the high levels

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of violence which are concentrated mainly amongst marginalized and poor people, thus implying a profound segregation between the rich and the poor in the country in terms of policing crime.

The Policing Context Shearing (2007: 249) talks about the need to think of our present and our future, as a refigured past, as the future build upon the past. From this, it becomes vital to contemplate on the values which underpinned the mandate of the South African Police Service during the 1990s, in order to understand what the future holds for policing in South Africa.

Despite efforts by the South African government to alleviate the plight of the poor, the gap between the rich and poor is widening. Altbeker (2008) demonstrates the extent to which exclusion of the largest portion of South Africas from the formal employment sector led to inequality, which in turns underpins the high levels of violence in the country. Racism, xenophobia and gender inequality further fuel the economic and political stresses which culminates into a volatile environment where violent behaviour and disregard of fellow citizens human rights are the order of the day (February 2010).This places increased demands on the mandate to police crime.

A debate around the kind of service that the public want from the police brings the argument full circle back to the primary question of what the society which must be policed, looks like as policing is a symbol, not a source, of the character of a civilization (Reiner 2005). The crime that must be policed is not the disease which must be cured, but the symptom of a greater malice, which extends beyond the reach of policing. Instead of further entrenching the

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polices skewed directive, crime prevention should depend on transforming the society which is policed and demonstrates the political will to re-engineer society.

Back to the Future of Policing in South Africa The nature and extent of crime in South Africa and the poor handling thereof since the adoption of democracy in 1994 are facts which cannot be ignored. It is clear that drastic changes are needed to policing in the country. There is great concern about the debilitating effects of corruption and unethical behaviour on the democratic foundations of the country, and the impact this has on the socio-economic rights and dignity of people. The prevailing worldview philosophy of South Africa, namely Ubuntu, should permeate all aspects of life in Africa, encompassing its notion I am because your are into the policing field. It is obvious that there is a need to get back to the drawing board of 1994 where the basis of policing in a new democracy was laid, namely the Constitution of South Africa.

The impossibility of the mandate of the South African Police Service is reiterated by Smith that the police is not the only source of social control, as there are a myriad others (Smith in Shearing, 2007: 250). Reiner (2005) uses a similar framework as Burger (2010) and Smith (2007) in that he concludes that the states governance of security has shrunk and that it is not pluralized at all.

Any crime reduction strategy which focuses only on police tactics is destined to fail and it is only through empowering communities to control themselves, that criminality can be effectively reduced (Herbert 2006: 172). From a socio-democratic viewpoint, crimes should not be seen as an offense against the state, but as a threat to community solidarity. Herbert (2006) refers to Clear and Karp who point towards the fact that communities bring criminals

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and victims together should they not engage in community-supervised reconciliation processes. The main task is of communities to acknowledge the criminals in their midst and to engage in a process where they are actively confronted and redirected. The neo-liberal wind which blows through the SAPS reinforces the division between the police and the community, with the community stepping back expecting the police to rid them of crime. There is little evidence that new police strategies are responsible for reducing crime (Greene 1999; Eck and Maguire 2000), thus rendering the neo-liberal tendencies in policing in South Africa, futile.

Conclusion The loss of a vibrant organic connection between the socio-demographic vision that the architects of the new South Africa had after the demise of apartheid and the stark realities of meeting the current calls for action against the high crime rate, result in the demise of the envisioned ideals. The complex reality within which police officials are required to fulfill their mandate, siphoned off the benefits of democracy and the Constitution. The neo-liberal policing approach allows categorical framing of crime and policing, allowing the police to retain their authority and moral standing, citizens expecting robust police to protect them against crime and politicians to vilify criminals instead of assisting them.

The clarity of the mandate of the South African Police Service appears to be the fringe region of half shadow from the partial obstruction of its socio-democratic mandate by the neo-liberal political and public demands to address the crime problem in South Africa. The penumbra in service delivery by the police can only be clarified when there is lucidity on what the polices actual mandate is. This will clear the point where light and shade blend.

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References Altbeker A (2008) Adding injury to insult. How exclusion and inequality drive South Africas problem of violence. Johannesburg: Centre for the Study of Violence and Reconciliation. Bittner E (2006) The quasi-military organization of the police. In Kappeler V E (ed) The police and society (3rd ed.). Long Grove, Ill: Waveland Press. Bruce D and Gould C (2009) The war against the causes of crime. SA Crime Quarterly 30: 13-20. Burger J (2007) Strategic perspectives on crime and policing in South Africa. Pretoria: Van Schaik. Burger J (2010) Institutional schizophrenia and police militarization. Pretoria: ISS News. Carlsson I and Lindgren A (2007) What is social democracy? Stockholm: Ide och Tendens. Crawford A (2007) Crime prevention and community safety. In: Maguire M; Morgan R and Reiner R (eds) The Oxford Handbook of Criminology (4th ed.). Oxford: Oxford University Press. De Villiers P and Adlam R (eds) (2004) Policing a safe, just and tolerant society. Winchester: Waterside Press. Dixon B (2004) In search of interactive globalization: Critical criminology in South Aricas transition. Crime, Law and Social Change (41) 359-384. Eck J and Maguire E (2000) Have changes in policing reduced violent crime? An assessment of the evidence. In Blumstein A and Wallman J (eds) The crime drop in America. Cambridge: Cambridge University Press.

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February J (2010) Benefits if democracy lost in the gap between the constitution and complex reality. Cape Times, 24 March. Ferguson I (2008) Reclaiming social work. Challenging neo-liberalism and promoting social justice. Los Angeles: Sage. Fourie H (2011) Cele defends heavy-handed cops. Beeld: 10 May. Fuller J R and Woznick J F (2008) The status of criminological theory. Advances in Criminological Theory (15): 251. Gordon D R (2001) Side by side: Neo liberalism and crime control in post-apartheid South Africa. Social Justice (Fall). Greene J (1999) Zero tolerance: A case study of police policies and practices in New York City. Crime and Delinquency 45:17-187. Hawker D (2011) SAPS could regress with new rankings. Pretoria news 27 March 2011 Available at: http://www.pretorianews.co.za Herbert S (2006) Policing the contemporary city. Fixing broken windows or shoring up neoliberalism. In: Kappeler, V E (ed) The police and society (3rd ed.). Long Grove Ill: Waveland Press. Hosken G (2011) Police brutality laid bare. Criminals in cop ranks, poor training and negligent management fingered at vital summit. Pretoria News. 26 May. ICD (2010) Annual report of the Independent Complaints Directorate. Available at http://www.icd.gov.za/documents/annual_reports.asp

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Malan M (1999) Police reform in South Africa: Peacebuilding without peacekeepers. African Security Review 8(3). Available at http://www.iss.co.za/pubs/ASR/8No3/PoliceReform.html Manning P K (2006) The police mandate, strategies and appearances. In: Kappeler V E (ed) The police and society (3rd ed.). Long Grove, Ill: Waveland Press. Martinez E and Garcia A (2000) What is neo-Liberalism? A brief definition. Available at http://www.globalexchange.org/campaigns/econ101/neoliberalDefined.html Merkel W, Petring A, Henkes C and Egle C (2008) Social democracy in power. The capacity to reform. Abingdon, UK: Routledge Taylor Francis Group. Minnaar A (2010) From a service to a force is the SAPS militarizing? Understanding the dynamics of police discipline and rank from an international comparative perspective. Unpublished presentation. ISS conference: Policing in South Africa: 2010 and beyond. 30th September and 1 October 2010. Misra-Dexter N and February J (eds) (2010) Testing democracy: Which way is South Africa going? Cape Town: ABC Press. Newburn T and Reiner R (2007) Policing and the police. In: M. MaguirE, R. Morgan and R. Reiner (eds). The Oxford Handbook of Criminology (4th ed.). Oxford: Oxford University Press. Newham G and Dissel A (2010) Policing in South Africa: 2010 and beyond. Pretoria: Institute for Security Studies. Neyroud P (2007) Managing the police through a time of change. In: A. Henry and D J. Smith (eds). Transformations of policing. Aldershot, UK: Ashgate.
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Raphael D D and Macfie A L (eds) (1976) The theory of moral sentiments. Oxford: Clarendon Press. Rawoot I (2011) Police violence highest in a decade. Mail and Guardian, 27 May. Reiner R (2005) Be tough on a crucial cause of crime neoliberalism. The Guardian, 24 November, p.6. Satgar V (2011) Reclaiming a vision of hope and a life of dignity: Neoliberal South Africa and the narrowing of democratic space. Available on http://www.constitutionallyspeaking.co.za Shearing C (2007) Policing our future. In: Henry A & Smith D J (eds) Transformations of policing. Aldershot, UK: Ashgate. South Africa (1995) South African Police Service Act (Act no. 68 of 1995). Pretoria: Government Printer. South Africa (1996a) Constitution of the Republic of South Africa (Act no. xx of 1996). Pretoria: Government Printer. South Africa (1996b) National crime prevention strategy (NCPS). Pretoria: Department of Safety and Security. South Africa (2011) South African Police Service Annual Report. Available at http://www.saps.gov.za/saps_profile/strategic_framework/annual_report/2009_2010/3_crime _situation.pdf Treanor P (2010) Available at http://web.inter.nl.net/users/Paul. Treanor/ neoliberalism. html

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Penal Policy and Punishment in a Global Era

Public Attitudes to Punishment and the Democratisation of Sentencing Policy

Dr David Indermaur Law School, University of Western Australia, Perth

Conference sub-theme: Penal Policy and Punishment in a Global Era

Abstract The tension between representations of public opinion, political decision making and sentencing policy provide the basis for the oft cited crisis of confidence in the courts. In this paper some of ways of engaging the public and providing for considered judgment in regard to sentencing policy are explored. The nature of informed public opinion and the contribution that deliberation makes to our understanding of public attitudes are also examined. It is argued that democratisation sits at the opposite end of a continuum of ways of engaging the public from the dominant political strategy of populism.

Introduction Throughout many western countries the call for the courts to more accurately reflect public opinion has become commonplace. Linked to this is a palpable tension between politicians and the judiciary over both matters of policy and practice. Powerful people, powerful forces but where in this tussle is the public? Traditional separations of power between arms of government and the judiciary may protect their respective power bases but also appear to effectively block out the public from a serious role in policy formation. The implicit responsiveness of the courts and governments to public opinion can be quite dangerous as the public opinion that is being taken on board is a kind of media dominated and reactionary

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discussion and bears little relation to more considered public judgment. It is argued in this paper that the public needs to be more effectively engaged in the policy development process and this engagement will involve a more considered and responsible role for the public. This discussion ultimately leads to a consideration of how a broad range of efforts aimed at engaging the public might be used in the development of sentencing policy. In this vein it will be argued that democratisation provides a meaningful framework for such engagement and that it sits at the opposite end of a continuum of ways of engaging the public from the dominant political strategy of populism.

The paper begins with a review of different ways of conceptualising and working with the construct public opinion before reviewing the range of possible levels of engagement with the public in regard to policy development.

What are Public Attitudes? Public attitude is not as simple as it is usually portrayed. The idea that the beliefs or voice of the public can be summarised or portrayed through polls and other devices belies the fact that the responses we get are dependent, not only on the question asked, but also the wider context of the question, the surrounding public information atmosphere and also other concerns that the member of the public wants to express. It follows that we need to be circumspect about the very construct of public opinion at the outset. This is not merely an abstract point but goes to the heart of the politicisation of sentencing. Many people purport to represent public opinion and therefore we need to know something about what it is and why such claims can so easily be made even though they are rarely questioned or justified.

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The best available evidence suggests that the thing we call public opinion is highly variable, quickly changing and largely dependent on the context and question asked32. The thoughts and positions adopted by a member of the public in relation to a question is usually preprimed by certain media and political discussions which sketch out the contours of most debates along the lines of already established socio-political interests (Herbst, 1998). Thus some authors (e.g. Lewis, 2001) talk about the constructed nature of public opinion. It is particularly important when comparing public attitude on sentencing with court practice to understand that the concept of attitude is very different from judgment. For example, public judgment has been used in the field of criminal justice for centuries in the form of the jury. This group of citizens is engaged in a particular manner so that they become highly informed and responsible and, as much as possible, they are encouraged to deliberate deeply.

What we might call public judgment on the one hand and public opinion on the other represent two extremes. Public opinion is often, if not usually, the product of top of the head opinion polls such as we often see in newspapers. The modus operandi here almost requires little consideration and uncensored reaction akin to a word association test. In contrast public judgment involves deeply considered judgment contained within certain parameters and guided by elaborate rules of evidence and the like. Naturally these serve very different purposes but they reflect in some degree the evolution of our thinking about public attitude, from being just lightly held opinion to considered judgment. For example, Habermas (1989 [1963]) distinguished mere opinion and public opinion. In this distinction, what Habermas calls public opinion is not the simple collection of individual views (mere opinion) but rather the evolution of such individual views as a result of rational

32

A number of authoritative sources provide detail on the picture of public opinion, the media and sentencing practice referred to here. Roberts and Stalans (1997) provide the most detail and complete reference. A more accessible reference is Roberts (1992) or Cullen et al (2000). In regard to the media and political exploitation of public concerns see Roberts et al (2003) or Indermaur and Hough (2003).

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critical debate (Habermas 1989 [1963]: 219). Placing respondents into a position where they need to weigh up competing goals, sensitivities and constraints to arrive at a responsible decision provides a task that invites a considered response. Studies of public attitudes have found this to be a crucial shift that informs and colours the outcome significantly. For example, Durham et al (1996) found that support for the death penalty decreased substantially when respondents were placed in more of a decision-making role by being presented with a case vignette rather than with a simple do you favour . . .? question.

So there is a range of levels of public opinion from superficial top of the head opinion to considered judgment which is more nuanced, informed and considered. One important milestone along this road is the development of the notion of informed public opinion.

Price and Neijins (1998) argue that there are three elements of informed public opinion: information; deliberation and responsibility taking. Interestingly two of these criteria do not primarily have to do with information but the orientation of the respondent to the task. Informed public opinion has been incorporated into a range of methods designed to provide a meaningful reflection of public views and responses to specific issues. These include, planning cells, deliberative polling, consensus conferences, citizen panels and citizens juries. Common to all these is the deliberative component where participants are provided with information about the issue being considered, encouraged to discuss and challenge the information, and consider each others views before making a decision or recommendation for action.

Studies of the effect of deliberation on attitudes to sentencing suggest that when asked to provide considered judgments members of the public will respond differently than when

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being asked for very general opinions (Green, 2006). One may espouse punitive opinions in a survey but also respond in a sober fashion to tasks requiring the exercise of judgment. What is essential for considered judgment is the context of decision making. The difference between considered judgment and the kinds of responses provided in top of the head opinion polls is that considered judgment is much more closely guided by the task and information relevant to the task, where top of the head opinions invite and reflect personal values or affect that are seen by respondents as appropriate to the general nature of the questions. Thus measures of top of the head attitude reflect preferences which generally tell us more about an individuals emotions and values and less about their knowledge or considered thought about a particular topic. These are interesting and may be relevant reflections of public mood but should not be confused with a considered judgment or preferred action in a particular case or even types of cases in general.

When we ask members of the public to think about the purposes of sentencing they tend to conflate or combine the major purposes. Most want both justice outcomes (that offenders get punished for wrong doings proportionate to the gravity of the offence) but they also want to ensure that public safety is enhanced or at least not diminished in the process. For example Rex (2002: 145) notes from her study of public perceptions of the functions of sentencing that people combined elements of retributive (or desert) thinking with consequentialist (or crime reductive) aims in their understanding of punishment. However, as Doob (2007)

found, it is the utilitarian aims that predominate when conditions for rational problem solving are established. When engaged as a decision maker rather than a critic of the courts or governments, members of the public isolate their interests in terms of crime reduction. Doobs study helped identify the significant public interest in the effectiveness of sentencing.

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Although the depth and breadth of public misinformation or misunderstanding has been documented for decades now, it would be a mistake to assume that the major problem with public attitude was simply a lack of information. Many who have sought to understand the public demand for punishment have concluded it is the emotional, social and symbolic value of punishment that provides the real appeal. Emotions of fear, anger and disgust are certainly easy to elicit on topics of crime and punishment. The emotional dimension of crime and justice explain its constant appeal to the media:

It has surrounded us with images of crime, pursuit and punishment and has provided us with regular, everyday occasions in which to play out the emotions of fear, anger, resentment and fascination that crime provides (Garland (2000: 363).

These social and emotional functions of punishment derive largely from an experience within individuals of insecurity manifest in a fear of crime. Psychologically, if such insecurity/fear can be replaced with an enabling and exuberant affective state such as moral indignation (anger) then something of a cathartic remedy is achieved. Expressions that emphasise punishment are thus often favoured because they involve a release at the emotional level. Indeed this cathartic effect can be sought because in many other areas where frustrations are built up there are few easy solutions and none that lend themselves to the release and expression of outrage. The technical details about alternatives to imprisonment, high rates of recidivism and so on will matter less to most than the release afforded through the expression of moral indignation. Savvy populists understand the Realpolitik of emotional management for electoral advantage. The merging of expressive emotions as a means of responding to amorphous threats provides a formula which gives crime and justice ubiquitous appeal as an object for media and political attention. Punishment policy provides an opportunity not only

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for expressive emotions at the individual level but grand gestures in the political realm. It is not necessarily because of a realistic threat of victimisation but rather because crime represents par excellence a range of other breakdowns in social institutions and relations through which individuals feel disempowered (see Tyler and Boeckmann 1997).

With crime it is thus very much a case of how an opportunity has been presented to serve political needs rather than simply the question of what can be done to reduce crime or protect the justice system (Beckett 1997). Crime presents political opportunities in much the same way as war does. The crisis of confidence or legitimacy in the courts is exacerbated by superficial polling which appears to reinforce and amplify public discontent with the courts. In the same way that there are political advantages in such discontent there are advantages to the media in being a channel for moral outrage. Stories of crime and resistance are as much a media staple as stories of war and the beauty of our weapons. Stories of both crime and war can be worked to galvanise emotions and forge experiences of social solidarity against agreed enemies.

Because of the power of expressive emotions and symbolic politics some may argue that there is nothing wrong with providing punishment which may be expressive but not based on rational consideration. But this simply puts sentencing in the position of the domestic cat that is kicked as an outlet for frustrations developed elsewhere. It follows that if we are to have a rational or responsible sentencing policy it is fundamental that the expressive value of punishment needs to be named as such so that it is not confused with a considered or accountable policy. Further, unless we accept the notion that crime policy should simply serve as a means for the public venting of frustrations we need to find a way of addressing the conflict between responsible policy making and popular punitiveness.

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To sum up, the systematic and responsible engagement of the public is vital not only to the legitimacy of the criminal justice system but also to protect it from political exploitation. There have been a number of suggestions about how to engage the public. It is fair to say that these are in a relatively early stage of development. In the following section the range of possible levels of engagement and their associated problems will be outlined.

Levels of Public Engagement Ways of engaging the public in regard to criminal justice policy can be sketched from reactionary to progressive. Although populist responses appear to privilege the public and provide the public a royal road to the articulation of policy, populism is dependent on emotions and media hyperbole rather than a true privileging of the public. The underlying issue is the level of respect and power afforded to the public. A range of responses from fundamentally disrespecting the public in populism to the opposite in democratisation can be placed on a continuum as shown in Table 1. This table was developed for ways of looking at the various responses to the crisis of confidence in the courts (Indermaur 2008). The table is organised to reflect power arrangements between the government and the public. This table will be used to examine the progression towards deeper levels of public engagement culminating in democratisation.

For many the populist response is the right response and brings elites back in line with public wishes and thus represents a case of democracy at work. Although superficially satisfying the populist response has many problems. Perhaps the most important to name is that it does not deliver a solution to the crime problem that makes sense under close analysis. There are those who argue that an effective response to crime in terms of optimising safety whilst ensuring a fair punishment is less important than the symbolic gesture of imprisoning

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certain categories of offenders for long periods. However this would privilege emotion over rationality to a degree that few politicians or members of the public would explicitly endorse. Information, knowledge, and rationality do eventually have a place and when brought into play spell out the problems with the populist response. It only really works at the level of a superficial glance. As van Swaaningnen (1997: 190) noted:

This way of government, which empties democratic and social principles of their meaning, marks "the unbearable lightness of politics". It is crucial to reveal the gut reaction populism on which this politics is actually based

The next step along a continuum of power/engagement are those solutions that emanate from a position of elite power. A range of solutions that implicitly assume that elites know best and the public, uniformed as they are about matters of crime and justice policy, need to be educated or informed or even persuaded in the hope that they will endorse the status quo.

Table 1. Potential responses to public dissatisfaction with the courts Continuum of Power/Engagement Superficial public power Elite power position Solution Punitive Populism Change public attitude Educate the public Protect current arrangements better Inform and influence policy makers Change/influence media coverage Problems Provides costly solutions with little public benefits little evidence of practical effectiveness denies legitimate concerns experts become political actors

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Table 1. Cont... Continuum of Power/Engagement Privileging the public Solution Provide more/better information Make policy and practices more transparent Make policies and practices more accountable More meaningful measures of public attitude Democratisation of crime policy Privileging the public Formal process of public engagement/debate Provide more/better information Make policy and practices more transparent Often not in media interests to report Problems Often not in media interests to report

Many of the solutions under the elite power position category involve doing things to the public that would protect current power arrangements for elites who are able to determine sentencing policy. Roberts et al (2003) provide some detail on the range of responses to penal populism that include these possibilities. Essentially these solutions break down into two categories that amount to almost the same thing. The first is trying to change public attitudes, the second is to educate the public. The belief held by many scholars in this area is that punitive attitudes are the result of misinformation and/or a lack of information. It follows, according to this view, that appropriate education will change attitudes in the direction of less punitiveness. However, this is based on the nave assumption that that punitive attitudes are based on beliefs about crime and that the goal of punishment is to reduce or prevent crime. As discussed earlier superficial attitudes are more likely to be values expressive and more likely to be reflective of generalised frustrations.
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There is obviously a political dimension to the use of emotions in this area that, if ignored, will impale all of the best intended reforming efforts. The emotional and political dimension of public attitudes, particularly as a political object, has to do with the perceived role and position of the public in relation to government. It is essentially a power battle. This is also why other purported solutions in this vein such as the construction of bodies such as Sentencing Councils designed to provide a buffer between government and the judiciary do not effectively deal with the dilemma of elite power and public disempowerment.

There are three other classes of response which also ultimately emanate from a position of elite power, although those who usually espouse them would see themselves as radical reformers rather than protectors of the status quo. These solutions start from the position of accepting that public policy on crime and punishment is intensely political, that the public is largely misinformed about the nature of crime and punishment and that political and special interest groups will exploit the extant reality for their own benefit. The solutions suggested in this group are aimed at getting a better crime policy not necessarily engaging or empowering the public. These reform solutions suggest that the best way forward is for reformers to find a seat at the table where policy is being formulated and try to influence it in the same way that special interest groups might. The idea here is to play the media, to reshape public debates, in effect to enter the fray and influence the outcome for a more rational sentencing policy.

Some of the efforts at this level are aimed at influencing the nature and the content of media coverage so that it becomes more informed, better educated and more reasonable. Again here there is a risk that we are working against what is viewed as a problematic public rather than effectively engaging with the public. Some of the efforts such as the suggestions for a

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replacement discourse (Barak, 1994) are aimed not at quelling public anger but re-directing it.

About this point in the continuum the public is seen less as an adversary and more as an ally for progressive change. Whilst battles rage over so called lenient sentencing perhaps the anger could be effectively redirected to those who promise to get tough on crime but are unwilling to set any targets or provide any measure of their success or any other meaningful indicator of their performance. Indeed a vital contribution that reformers can usually make is to provide some context to the public discussion in a manner that fills out the picture and provides meaningful frames of reference. One important role is to help re-focus the debate in a manner that encompasses the whole rather than one part, for example by describing trends in both reported and unreported crime and crime rates in other countries. In responding to public concerns it is of course fundamental to the possibility of engagement that the expressed concerns are acknowledged but then sufficiently focused in the light of available knowledge.

So by this point in the continuum an essential shift toward democratisation appears to have been reached. By beginning to place the public in the position of the owners of public policy who should be presented with evidence on the performance of sentencing and criminal justice more generally we move clearly to a position of privileging public opinion. Adopting a posture of respect to the public changes our responses to the problem considerably. Information is still the key, but now this is seen as something that should be provided to the public as a matter of course because they are the owners or guardians of the policy. Without accurate information on crime and justice and the success of various policies and strategies how are the owners able to assess the performance? Once this role and relationship is fully

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grasped high quality and comprehensive information on all manner of criminal justice operations will be made publicly available as a matter of course.

In the same vein, the actual practice of criminal justice and the rationale for certain decisions can be and should be made more available. A transparent policy signals a degree of openness and trust by those in charge of criminal justice policy to the public and perhaps once sufficiently informed will be demanded by the public. Those seeking to provide a more transparent system are indeed working for the public and signalling by their work that the public is to be served rather than avoided.

Efforts to more accurately measure and understand public preferences are respecting public opinion by taking it seriously. By engaging the public in serious discussions involving both information and judgment we signal that we expect more from the public than simply a repository of top of the head opinions. The measurement of public attitude to be comprehensive needs to move away from a focus on top of the head opinions that do little more than reflect the current media debates and symbolic positions and actually engage the respondent in a position of respect as a decision maker. As a decision maker the way individuals approach and respond to matters before them changes. Firstly to provide a meaningful response the respondent needs to be able to be briefed on important and relevant information and be able to access more information as they perceive may be necessary or relevant in their role as a decision maker. In much the same way as a group of the public in the form of a jury are fully apprised of the evidence and are able to seek more information then when a group of the public are charged with the responsibility to establish parameters for sentencing policy they must be fully informed, respected as the key decision maker and given the authority to seek more information.

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In terms of both measuring public opinion or preferences as well as giving an enhanced role to the public the key word is deliberation. In other areas of discussion of the democratisation of social policy the dominant notion is one of a deliberative democracy.

The attempt to democratise social policy in various ways is a new and growing area of interest mostly outside of criminal justice33. The power of populists and the media to take the moral high ground can continue for only so long as they can purport to speak for that mystical figure public opinion. Those claims can be cut down by establishing a robust process of public engagement that truly involves the public and brings them into the key decision making framework. A key question for those interested in democratisation is where public input is best placed. At the very abstract level of overall principles and goals it is likely everyone would agree that we want a sentencing system that optimises crime reduction whilst being fair and consistent. The large goals of sentencing and justice are largely not in dispute. All parties want to achieve public safety as a priority and to do this in a way which is fair and just to all parties. Whilst there may be debates about the quantum of the punishment such debates can be disciplined through the introduction of a budget designed to achieve public safety (Roberts et al, 2003). By placing all the efforts to achieve safety in a balanced budget the relative costs of imprisonment as a way of achieving safety will become more apparent. Most importantly this effort is justified by the potential to legitimise broad principles aimed at balancing crime reduction goals with protection of individual rights.

Ways of Involving the Public In the previous section the problems at the intersection of between government and the public regarding public engagement were explored. With this as a base perhaps we can now

33

For an overview see Goodwin (2003), Dryzek (2000), Bessette (1994) and Gastil amd Levine (2005).

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consider the different levels or forms of public involvement of the public in sentencing reform? Clearly they differ in terms of the degree of power or agency afforded to the public. At one extreme we imagine the public being a school room of passive subjects waiting to be educated at the other a critical master that must be persuaded of the merits of current sentencing policy. In the middle we have perhaps something more of what we are aiming at the possibility of a respectful, information rich debate about the purposes and strategies of sentencing. Key axes concern level of responsibility and the level of power. These two axes of responsibility and power allow us to consider how expectations of the public differ in different forms of government (Table 2). Reflecting on the respective roles or postures of government and the public we can see more clearly how respectful involvement of the public not only provides the public more power but also at the same time expects more responsible decision making.

Table 2. Roles of the public and government in various forms of engagement. (RF = relational form, EoP = Expectations of the public in this form) Responsibility afforded to the public component Low High

Low Power of the public component High

RF: Totalitarianism EoP: Instruct, educate

RF: Representative democracy EoP: Passive listening, voting

RF: Populism EoP: Sell, react

RF: Deliberative democracy EoP: Involve, consider

Although apparent public involvement in juries, parole boards and in restorative justice cases may signal positive involvement for the public this all amounts to a very small impact on

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sentencing and in ways that reflect in only a meagre way what might be called the public. A legitimate public involvement would clearly seek to incorporate and harness the views of the ordinary citizen that does not have a particular axe to grind but is concerned with the things most citizens can be thought to be concerned with public safety and the integrity and fairness of the criminal justice system. Also this public involvement must be geared up to be at least modestly informed about some relevant facts about crime and the possible functions of punishment.

Following this there has to be room for some debating process where views can be put forward, tested, responded to and so on This process is necessary to test the robustness of certain views and explore what is essential and what is more peripheral or expendable in public wishes concerning sentencing The debating process also tests out how public views can respond and change with the addition of information like the technical likelihood of changing behaviour, producing more public safety, the relative costs of certain proposals and perhaps some of the unanticipated consequences.

From this process of providing information and debate we can arrive at a set of principles and priorities that derive from public input into the process and hold these against the view from the legislation, the judiciary and sentencing scholars. Such input can be used as a way of

deriving certain positions and decisions taken by the legislature.

In considering the public input the focus should be on overarching principles, priorities and the purposes of sentencing. The technical detail of how to give effect to these principles is more the province of legal technicians the administrators of the criminal justice system that

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have the task of ensuring that the administration of criminal justice is fair and gives effect to the legislated aims and principles.

Certainly there is a role for consciousness raising as a prelude to that debate but ultimately much of the public concern can be dealt with as a discussion about priorities, about the how to settle competing interests. There is a belief amongst some in the judiciary and academia that sentencing is too important to be entrusted to the public. But to hold to such a view is at the very heart of the problem. Participative democracy here is in line with the public sentiment that is sceptical about elites self interest in holding power. Ultimately it is the public either through its elected representatives or through a more participative process that that will determine the level of punishment that should be assigned to various offences and the guiding purposes of sentencing. Unfortunately under populism the public drive for an influence in such matters is expressed in undifferentiated and unproductive ways (such as mandatory sentencing). We thus return to where we started the crisis of confidence in the courts. Understanding the nature of this crisis needs to include a healthy analysis of the manner in which the courts have become positioned as the representation of the old elites and thus paving the way for populist solutions. Democratisation offers the prospect of breaking out of this nexus.

The crisis over sentencing policy and the routine attacks on the judiciary in the tabloid press can be seen to be the outcome of shutting the public out of a matter that they have a high stake in public safety and moral responses. The media serve to provide a form of public debate, but it is one predicated on a passive democracy. Part of the problem with the current political arrangement it draws on a well spring of non participating, passive media consumers epitomised by talk back radio shows. The evil is created by the process of exclusion. The

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remedy is to involve, through not only information giving which could be criticised as being patronising, but through full engagement and empowerment in a decision making forum.

The slide of representative democracy into populism is assisted by a simplistic notion of public power within a passive democracy framework. The populist response promises much, pretends much but details little and delivers little. The emphasis is at the emotional and symbolic theatre and rather less on the more sober aspects of governance. Putting any individual or collective in the position of high power and low responsibility invites the capricious and the ill informed a disproportionate influence on policy. A balanced approach is to match responsibility with power so that the policies we have are tempered with a greater degree of caution and consciousness for the effect and implications of the policy (see Johnstone 2004).

Summary and Conclusion If, as some argue, populism is the bane of democracy then the misrepresentation of the voice of the public plays a large part in the corrosion of democracy and robs it of its potential to produce policy that is widely endorsed and respected. By reclaiming, reformatting and restoring the legitimacy of the public voice populism can be effectively opposed and exposed for what it is.

People understand the difference between giving an opinion that expresses general or political sentiments and taking responsibility for official action affecting peoples lives. Most discussions and indeed measures of public opinion have been closely framed by political and media interests and their specific agendas. The problem of public opinion in regard to criminal justice policy is not, therefore, a lack of information but in the nature of the

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relationship between government and the public. Engaging the public is fundamental to support the legitimacy of criminal justice reforms. A true democratisation of policy would invite the public in to consider not only the headlines but the substance of sentencing preferences the goals, that costs and the tradeoffs that must be made between justice and safety.

References Barak G (1994) Media, process and the social construction of crime. New York: Garland. Beckett K (1997) Making crime pay: Law and order in contemporary American politics. New York, NY: Oxford University Press. Bessette J (1994) The mild Voice of reason: Deliberative democracy and American national government. Chicago: University of Chicago Press. Cullen F, Fisher B S and Applegate B K (2000) Public opinion about punishment and corrections. In: M. Tonry (ed) Crime and justice: A review of the research, volume 27. Chicago: University of Chicago Press: 1-79. Doob A (2000) Transforming the punishment environment: Understanding public views of what should be accomplished at sentencing. Canadian Journal of Criminology 42(3): 323340. Dryzek J (2000) Deliberative democracy and beyond. Oxford: Oxford University Press. Durham A, Elrod P and Kinkade P (1996) Public support for the death penalty: Beyond Gallup. Justice Quarterly 13(4): 705-736.

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Garland D (2000) The Culture of high crime societies: Some preconditions of recent law and order policies. British Journal of Criminology 40: 347-375. Gastil J and Levine P (eds) (2005) The deliberative democracy handbook: Strategies for effective civil engagement in the twenty first century. San Fransisco: Jossey-Bass. Goodwin R (2003) Reflective democracy. Oxford: Oxford University Press. Green D (2006) Public opinion versus public judgment about crime: Correcting the comedy of errors. British Journal of Criminology 46: 131-154. Habermas J (1989 [1963]) The structural transformation of the public sphere: An inquiry into a category of bourgeois society. Trans. Thomas Burger. Cambridge, MA: MIT Press. Herbst S (1998) Reading public opinion. Chicago: University of Chicago Press. Indermaur D (2008) Dealing the public in: Challenges for a transparent and accountable sentencing policy. In: A. Freiberg and K. Gelb (eds). Penal populism, sentencing councils and sentencing policy. Sydney: Hawkins Press. Indermaur D and Hough M (2003) Changing attitudes to punishment. In: J V. Roberts and M. Hough (eds) Changing attitudes to punishment: Public opinion, crime and justice. Cullompton, UK: Willan. Johnstone G (2000) Penal policy making: Elitist, populist or participatory? Punishment and Society 2: 161-180. Lewis J (2001) Constructing public opinion. New York, NY: Columbia University Press. Price V and Neijens P (1998) Deliberative polls: Towards improved measures of informed public opinion. International Journal of Public Opinion Research 10: 145-176.
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Rex S (2002) Reinventing community penalties: The role of communication. In: S. Rex and M. Tonry (eds). Reform and punishment: The future of sentencing. Cullompton UK: Willan. Roberts J (2002) Public opinion and sentencing policy. In: S. Rex and M. Tonry (eds) Reform and punishment: The future of sentencing. Cullompton UK: Willan. Roberts J (1992) Public opinion, crime and criminal justice. In M. Tonry (ed). Crime and Justice: A Review of Research. 16: 99-180. Chicago: University of Chicago Press. Roberts J and Stalans L (1997) Public opinion, crime and criminal justice. Boulder, CO: Westview Press. Roberts J, Stalans L, Indermaur D and Hough M (2003) Penal populism and public opinion: Lessons from five countries. New York, NY: Oxford University Press. Tyler T and Boeckmann R (1997) Three strikes and you are out, but why? The psychology of public support for punishing rule breakers. Law and Society Review 31: 237- 264. van Swaaningnen R (1997) Critical criminology: Visions from Europe. London: Sage.

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Principles Relevant to the Sentencing of Individuals for Terrorism Offences Nicola McGarrity* Faculty of Law, University of New South Wales, Sydney

Conference sub-theme: Penal Policy and Punishment in a Global Era

Abstract This paper draws upon previous research that I have conducted into the prosecution of persons accused of terrorism in Australia. See, Nicola McGarrity, Testing Our CounterTerrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia (2009) 33 Criminal Law Review 201. Furthermore, in the second half of 2010, I appeared as junior defence counsel in the Victorian Supreme Court for Mr Saney Aweys, who was charged and ultimately convicted of doing an act in preparation for a terrorist act. Since 2001, 37 people (all Islamic men) have been charged with terrorism offences in Australia. Twenty-six of these men have been convicted and sentenced to between four and 28 years imprisonment (with the sentences for three of the men pending). The purpose of this paper is to examine the principles applying to sentences for such offences, in particular, the prospects of rehabilitation, objective seriousness of the offence and specific and general deterrence. The thesis that will be tested is whether the extremist religious beliefs of persons convicted of terrorism result in significantly higher sentences than would be the case with regard to a person motivated by private factors. It will consider the effect that a persons religious motivation has upon the sentences handed down.

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Introduction Prior to the 9/11 terrorist attacks in the United States, there were no national anti-terrorism laws in Australia. This is probably unsurprising given that the only commonly accepted instance of terrorism on Australian soil was the 1978 bombing of the Commonwealth Heads of Government Meeting at the Hilton Hotel in Sydney.34 However, over the last decade, more than 45 anti-terrorism laws have been enacted by the Commonwealth Parliament. These laws all hinge upon the definition of a terrorist act in s 100.1 of the Criminal Code Act 1995 (Cth) (Criminal Code). This definition requires that the action be done or the threat of action be made with the intention of advancing a political, religious or ideological cause and of coercing an Australian or foreign government or intimidating the public.35 Furthermore, the action must cause a minimal level of harm, such as serious damage to property or serious physical harm to a person.36

For obvious reasons, it is an offence to engage in a terrorist act (s 101.1). However, no person has ever been charged with this offence. The vast majority of the terrorism offences introduced since 9/11 focus on conduct preparatory to the actual engagement in a terrorist act. This is because of a belief on the part of legislators that the potential for terrorist acts to cause mass loss of life makes the usual reactive approach of the law that is, the punishment of criminal conduct after the fact inappropriate. Therefore, Division 101 of the Criminal Code makes it an offence to engage in a range of preparatory conduct, including possessing a thing connected with preparation for a terrorist act37 and doing an act in preparation for a terrorist

*
34

35 36 37

Lecturer, Australian Research Council Laureate Fellowship: Anti Terror Laws and the Democratic Challenge, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales. Andrew Lynch and George Williams, What Price Security? Taking Stock of Australias Anti-Terror Laws (2006) 9. Criminal Code Act 1995 (Cth) s 100.1(1). Criminal Code Act 1995 (Cth) s 100.1(2). Section 100.1(3) establishes an exception for advocacy, dissent and protest. Criminal Code Act 1995 (Cth) s 101.4.

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act.38 Division 102 targets terrorist organisations, making it an offence, where an organisation has been listed by regulation or declared by the courts to be a terrorist organisation, to participate in the activities of that organisation. For example, it is an offence to direct those activities39 and to train with40 or provide support or resources to41 a terrorist organisation. Division 102 also creates status offences for membership of,42 or association with,43 a terrorist organisation. There are also two different regimes of financing offences, one contained in Division 103 of the Criminal Code and the other in the Charter of the United Nations Act 1945 (Cth).

The terrorism offences have been aggressively enforced. Charges have been laid against 37 individuals (all male, and all but one a self-professed Muslims). Twenty five of these men have been convicted.44 This paper will not examine the cases against these men or the conduct of their trials.45 Instead, it aims to set out the general principles relevant to sentencing of individuals for terrorism offences, and how these principles have been applied by Australian judges. To date, 22 of the 25 men have been sentenced.46 Their sentences ranged from 1 year imprisonment with a three year good behaviour bond to 28 years imprisonment.

38 39 40 41 42 43 44 45

46

Criminal Code Act 1995 (Cth) s 101.6. Criminal Code Act 1995 (Cth) s 102.2. Criminal Code Act 1995 (Cth) s 102.5. Criminal Code Act 1995 (Cth) s 102.4. Criminal Code Act 1995 (Cth) s 102.3. Criminal Code Act 1995 (Cth) s 102.8. The conviction of Bilal Khazaal was recently overturned and a new trial ordered. See Jihad Book Conviction Overturned, New Trial Order in Case of Belal Khazaal, The Australian, 9 June 2011. For a detailed discussion of Australias terrorism trials, see Nicola McGarrity, Testing Our CounterTerrorism Laws: The Prosecution of Individuals for Terrorism Offences in Australia (2010) 34(2) Criminal Law Review 92. This figure does not include the sentence of Bilal Khazaal. Nevertheless, the sentencing judgment and the general principles reflected in it will be considered in this article. A decision on the sentences of Saney Aweys, Nayef El Sayed and Wissam Fattal (the Holsworthy terrorists) is currently reserved. The sentencing plea took place on 5-6 May 2011.

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The starting point in relation to sentencing for Commonwealth offences is subsec 16A(1) of the Crimes Act 1914 (Cth). This subsection provides that a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Subsection 16(2) then sets out a non-exhaustive list of 13 matters that the court must take into account if they are relevant and are known to the court. These matters are:

(a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar characterthat course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (f) the degree to which the person had shown contrition for the offence: (i) by taking action to make reparation for injury, loss or damage resulting from the offence; or (ii) in any other manner; (g) if the person has pleaded guilty to the charge in respect of the offencethat fact; (h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (k) the need to ensure that the person is adequately punished for the offence;

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(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the persons family or dependants.

In the Canadian case of R v Khawaja,47 the Ontario Court of Appeal considered that, in relation to a similar list of statutory factors, there were three key factors to take into account in the context of terrorism offences. First, the unique nature of terrorism-related offences and the special danger that these crimes pose to Canadian society (seriousness of the offence). Second, the degree of continuing danger that the offender presents to society (prospects of rehabilitation). Finally, the need for the sentence imposed to send a clear message to wouldbe terrorists that Canada is not a safe haven from which to pursue their subversive and violent ambitions (general and specific deterrence). This article will examine the significance of each of these factors in the sentencing of Australian terrorists.

Seriousness of the Offence The seriousness of a terrorism offence will obviously depend, in large part, upon the precise factual circumstances surrounding the commission of that offence. For example, in sentencing Bilal Khazaal for making what the prosecution described as a DIY guide to terrorism, Latham J examined the period of time over which the offence was committed, the manner in which Khazaal collected and collated the material contained in the document, and the volume, detail and accuracy of the information relating to the commission of terrorist

47

2010 ONCA 862 [192].

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acts.48 It is beyond the scope of this article to set out the factual circumstances relating to each of the 25 men convicted of terrorism offences. Instead, this section of the article will examine whether and how three particular issues affect the courts calculation of the seriousness of a terrorism offence. First, the proximity of the preparatory acts to the commission of a terrorist act. Second, the target of and/or the means proposed to be used in the terrorist act. Finally, offences committed by a group (as opposed to an individual).

Proximity to the Commission of a Terrorist Act A particularly vexed question is whether the remoteness of preparatory activities from the commission of a terrorist act should be taken into account in sentencing. A comparison of two recent cases clearly demonstrates how this issue might play out in practice. In the 2008/2009 trial of Mohamed Elomar and four other men before the New South Wales Supreme Court (the Elomar accused), there was evidence that the men had taken significant steps towards the commission of a terrorist act. Amongst other things, they had attended training camps, collected ammunition, purchased laboratory equipment and chemicals, and possessed large quantities of instructional material about Islamic jihad and bomb-making.49 In a 2010 trial, Saney Aweys and two other men (the Aweys accused) were convicted before the Victorian Supreme Court of the same offence. At sentencing, the prosecution argued that the proximity of the preparatory activities to the commission of a terrorist act was irrelevant. The defence, however, contrasted the nature of the activities undertaken by the Aweys accused with those undertaken by the Elomar accused. The formers activities were limited to a short reconaissance trip to Holsworthy Army Barracks in Sydney, and requesting permission from a Somali sheik to engage in a terrorist attack on an Australian army base.50

48 49 50

R v Khazaal [2009] NSWSC 1015 [17]-[21]. R v Elomar and Ors [2010] NSWSC 10 [17]-55]. The comments on this case are based on my personal experiences as junior counsel for Saney Aweys.

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Some guidance might be taken from the decision of the New South Wales Court of Criminal Appeal in Lodhi v R.51 The Court of Criminal Appeal accepted that the proximity between the preparatory act and the completion of the offence was a relevant factor. This approach appears to have been adopted by Whealy J in sentencing Mohamed Elomar and four other men. His Honour took into account the fact that the arrangements were relatively well advanced and were characterised by a clear and logical inevitability, namely that, but for the intervention of the authorities, such arrangements would have been put into effect sooner rather than latter.52 However, the Court of Criminal Appeal in Lodhi v R insisted that, although a relevant factor, proximity does not determine the objective seriousness of that offence (emphasis added). This is because in enacting the preparatory terrorism offences in Division 101, the Commonwealth Parliament made a deliberate decision to enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it.53 That is, the very nature of the offences in Division 101 and 102 of the Criminal Code means that it is very likely that the offending activities will be extremely remote from the commission of a terrorist act.

Nature of the Terrorist Act In any event, in addition to examining the remoteness of the preparatory activities from the commission of a terrorist act, it is necessary to consider the nature of the terrorist act contemplated. In many instances, the early intervention by law enforcement agencies means that a terrorist target will not have been selected by the convicted men. Indeed, the only case in which the prosecution has identified a specific terrorist target was that of Saney Aweys and two other men. The activities and intercepted telephone conversations of the men indicated

51 52 53

[2007] NSWCCA 360. R v Elomar [2010] NSWSC 10 [68]. Lodhi v R [2007] NSWCCA 360 [229].

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that the terrorist target was Holsworthy Army Barracks.54 Given that a decision on sentencing is currently reserved in that case, it is impossible as yet to determine what effect the selection of a terrorist target will have upon sentencing.

In contrast, the prosecution has frequently presented evidence as to the means the convicted men intended to use in the commission of a terrorist act, such as firearms or explosives, and the nature of the harm that the terrorist act is intended to achieve. The seriousness of the offence will depend in large part upon whether the intention of the terrorist was to, for example, cause serious property damage or take human life. This was the key factor that led Whealy J to conclude that the offence committed by Mohamed Elomar and four other men was of the most serious kind falling only marginally short of the most serious case.55 His Honour held that each of the men intended that the terrorist act or acts would involve action that, at the very least, was intended to cause serious damage to property. Although there was insufficient evidence for Whealy J to be satisfied beyond reasonable doubt that any of the offenders intended directly to kill or take human life, his Honour found that it is clear beyond argument that the fanaticism and extremist position taken by each offender countenanced the possibility of loss of life if that were to occur.56

Group-Based Nature of the Offences The trend in prosecuting the terrorism offences in recent years has been to prosecute groups of persons rather than individuals. The most obvious way in which this has manifested itself has been in the prosecution of persons for terrorist organisation offences. For example, the Benbrika trial saw the prosecution of 12 men (not including Izydeen Atik, who pleaded guilty

54 55 56

See n 17 above. R v Elomar [2010] NSWSC 10 [69]. Ibid [60].

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prior to trial) for terrorist organisation offences.57 A different approach was adopted in the Elomar and Aweys trials, in which the accused were charged with conspiracy to do an act in preparation for a terrorist act.58 Below is a discussion of the two key ways in which the group-based nature of terrorism offences may impact on sentencing.

First, in upholding an appeal against the sentences handed down to the Benbrika accused, the Victorian Court of Appeal held that the history of the particular organisation with which the convicted persons were involved may be taken into account in sentencing. The Court of Appeal drew a distinction between an organisation consisting of a rag-tag collection of malcontents and an organisation, such as Al Qaeda, with a proven record of committing the worst terrorists acts imaginable.59 Whilst any activities engaged in with the intention of advancing the commission of a terrorist act cannot ever be regarded as less than very serious,60 nevertheless the activities of the former class of organisation are less likely to result in the commission of a terrorist act than the latter.61 Furthermore, the moral culpability of an individual who becomes involved with an organisation of the latter class is likely to be greater because logic and common sense imply the probability that the offender will be committed to the terrorist philosophy and objectives of the organisation before being admitted to its membership, and so they will go into it with their eyes wide open.62 Therefore, the nature of the organisation is a factor that should be taken into account by a sentencing judge in deciding what range of sentence to impose. Although the Court of Appeal made these comments in the context of sentencing for Division 102 terrorist organisation

57

58 59 60 61 62

See R v Benbrika and Ors [2009] VSC 21. Seven of the men were convicted of being members of a terrorist organisation (Criminal Code Act 1995 (Cth) s 102.3). Three of the men were convicted of providing resources to a terrorist organisation (s 102.7). Three of the men were convicted of attempting to make funds available to a terrorist organisation (s 102.6). Finally, Benbrika was convicted of directing the activities of a terrorist organisation (s 102.2). Criminal Code Act 1995 (Cth) ss 11.5 and 101.6. R v Benbrika and Ors [2009] VSC 21 [555]. Ibid [557]. Ibid [555]. Ibid [556].

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offences, there is no reason why the history of an organisation might not also be relevant in sentencing a group of persons for conspiracy to engage in a preparatory offence contrary to Division 101 of the Criminal Code.

Second, in sentencing Elomar and four others for the offence of conspiring to do an act in preparation for a terrorist act,63 Whealy J adopted the conventional approach that [t]he sentence must reflect the organisational nature of the conspiracy rather than confining the sentencing discretion to the identification of the role of the offender with specific reference to the physical acts that he undertook.64 However, this principle has a particular significance in the terrorism context because of the extremist motivation of the accused. Justice Whealy noted that the overall extremist zeal of a group venture is more enduring, more fanatical, more determined, more resourceful and ultimately likely to be more successful than an individual acting alone.65 His Honour went on:

It certainly could not be said that the prospect of a terrorist act or acts was completely indeterminate as to when it would occur. The driving fanaticism behind the collective mindset of the conspiracy would have ensured that events moved quickly once sufficient material had been assembled, and the authorities surveillance thwarted or at least diminished.66

Prospects of Rehabilitation Section 16A(n) requires the court to take into account the prospects of rehabilitation for an accused in determining what the appropriate sentence is. However, the accepted approach in

63 64 65 66

R v Elomar & Ors [2010] NSWSC 10. Ibid [15]. Ibid [64]. Ibid [68].

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Australian terrorism trials appears to be that rehabilitation is of limited relevance. In the United Kingdom case of R v Martin,67 Lord Bingham stated:

In passing sentence for the most serious terrorist offences, the object of this court will be to punish, deter and incapacitate; rehabilitation is likely to play a minor (if any) part.68

Similar statements were made by Price J in Lodhi v R:69

Rehabilitation and personal circumstances should often be given very little weight in the case of an offender who is charged with a terrorism offence. A terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution.70

These statements seem to suggest that rehabilitation is a subsidiary factor. The underlying reason for this relates to the inclusion of what is generally referred to as the motive element in the definition of a terrorist act. In R v Thambaithurai,71 the Court of Appeal for British Columbia noted that these offences are often [or, according to the Australian definition of a terrorist act, always] motivated by political, religious or ideological purposes or objectives and [s]uch beliefs are often immutable. Similar comments were made by Whealy J in R v Elomar & Ors.72 His Honour stated:

67 68 69 70 71 72

[1998] EWCA Crim 3046. Ibid 480. [2007] NSWCCA 360. Ibid [274] R v Thambaithurai 2011 BCCA 137 [22]. [2010] NSWSC 10.

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This criminal enterprise was not in any sense motivated, as criminal activities so often are, by a need for financial gain or simply private revenge. Rather, an intolerant and inflexible fundamentalist religious conviction was the principal feature for the commission of the offence. This is the most startling and intransigent feature of the crime. It sets it apart from other criminal enterprises motivated by financial gain, by passion, anger or revenge.73

However, there is no support in s 16(2) of the Crimes Act 1914 (Cth) for a blanket rule that rehabilitation is a subsidiary factor. Each of the factors set out in this subsection are, prima facie, of equal value. An alternative way of understanding the views expressed by Lord Bingham and Price J is to say that, although the courts are statutorily required to consider the question of rehabilitation, the reality is that the prospects of rehabilitating an individual convicted of a terrorism offence will generally be extremely low. This accords with the manner in which sentencing judges have considered, in each terrorism trial, the question of whether there has been any movement away from the individuals extremist position.

For example, in the sentencing of each of Mazen Touma, Mirsad Mulahalilovic and Khaled Sharrouf Justice Whealy held that the pleas of guilty made by these men could be taken, to a degree, to express remorse and acceptance of responsibility, as well as a drawing back by the offender from the extremist views that motivated the commission of the offences. In R v Sharrouf,74 Whealy J accepted that overall the offender has reasonable prospects of rehabilitation.75 Similarly, in R v Mulahalilovic,76 Whealy J stated that the plea must be taken to indicate that the offender is unlikely to be, or represent, a danger to the community

73 74 75 76

Ibid at [63]. [2009] NSWSC 1002. Ibid [49]. [2009] NSWSC 1010.

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on release.77 However, in the vast majority of Australias terrorism trials, the defendant(s) did not give any evidence at trial or during sentencing. Justice Whealy noted in R v Touma78 that considerable caution must be taken in judging the prospects of rehabilitation and whether there has in fact been a movement away from extremist views because the present state of [the defendants] mind has not been explored or tested in any way.79 Therefore, very little weight was given by Whealy J to statements made by these three individuals to psychologists or other persons to the effect that they had renounced such views. This suggests that it is only where a person pleads guilty, or possibly where he or she gives evidence on the stand, that a sentencing judge is capable of finding that an individual has in any way renounced his extremist views. In R v Lodhi,80 Whealy J stated at [49]:

there is not the slightest evidence to suggest that he had renounced his former intentions. They were, I am satisfied beyond reasonable doubt, intentions he held with great vigour and firmness. They were the consequence of a deeply fanatical, but sincerely held, religious and (sic) worldview based on his faith and his attitude to the extreme dictates of fundamentalist Islamic propositions.

His Honour continued at [74]:

The offender was perfectly entitled to maintain his innocence both during the trial and thereafter. This does not mean that his penalty is to be in any sense aggravated or increased. But it does mean that I can make no allowance on his

77 78 79 80

Ibid [70]. [2008] NSWSC 1475. Ibid [144]. [2006] NSWSC 691.

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behalf for contrition and remorse. Equally, it makes it difficult for the sentencing court to form any view as to whether the imposition of a significant penalty on the offender will result in his reform and rehabilitation.

General and Specific Deterrence Section 16A(2)(j) recognises that specific deterrence should be taken into account in sentencing an individual for a federal offence. Specific deterrence aims to dissuade the individual offender from committing further offences of a similar nature by imposing sanctions which demonstrate the adverse consequences of criminal activity. A prominent theme running through Australias terrorism sentencing judgments is that the public motive of terrorism accused for example, that he or she is driven to intimidate the public or coerce the government because of an extremist religious conviction increases the need for the community to be protected from his or her criminality. It is therefore necessary for him or her to be incapacitated for a considerable period of time.81

In contrast to specific deterrence, general deterrence is not mentioned in s 16A(2). Nevertheless, the proportionality test spelt out in s 16A(1) as well as the continuing relevance of common law sentencing principles mean that general deterrence will still be taken into account by a court in sentencing an individual for a federal offence. General deterrence is not aimed at the specific individual, but rather aims to deter prospective offenders by instilling in them the fear of incurring similar sanctions. The importance of general deterrence in terrorism cases was described by Whealy J in sentencing Faheem Lodhi as obvious. His Honour stated:

81

See, for example, R v Elomar & Ors [2010] NSWSC 10 [93] (Whealy J).

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Such crimes are hard to detect; they are likely to be committed by members of our own community and often by persons of prior good character and favourable background. One has only to consider the tragedy of the London bombings in 2005 to recognise this observation as a sad truism. Moreover, terrorism is an increasing evil in our world and a country like Australia, with its very openness and trusting nature, is likely to fall easy prey to the horrors of terrorist activities.82

The reality is that the force of an ideological or religious motivation for terrorism means that specific and general deterrence may frequently be ineffective.83 This was further explained by the Court of Appeal for England and Wales in R v Barot:84

Terrorists who set out to murder innocent citizens are motivated by perverted ideology. Many are unlikely to be deterred by the length of the sentence that they risk, however long this may be. Indeed, some are prepared to kill themselves in order to more readily kill others.

However, the Court of Appeal insisted that these principles must still be taken into account:

It is, however, important that those who might be tempted to accept the role of camp followers of the more fanatic, are aware that, if they yield to that temptation, they place themselves at risk of very severe punishment.

82 83 84

R v Lodhi [2006] NSWSC 691 [91] (Whealy J). Lodhi v R [2007] NSWCCA 360 (Spigelman J) [87]. (2007) EWCA Crim 1119.

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Punishment is the other important element of the determination of the sentence for offences such as this.85

Similarly, in R v Lodhi,86 Whealy J stated:

It may be that the imposition of stern penalties, in the context of firm denunciatory statements, will not in fact deter those whose religious and political ideologies are extreme and fanatical. But a stand must be taken. The community is owed this protection even if the obstinacy and madness of extreme views may mean that the protection is a fragile or uncertain one. In my view, the courts must speak firmly and with conviction in matters of this kind. This does not of course mean that general sentencing principles are undervalued or that matters favourable to an offender are to be overlooked. It does mean, however, that in offences of this kind, as I have said, the principles of denunciation and deterrence are to play a substantial role. There is also a need to recognise that the imposition of a substantial sentence may have a personal impact as a deterrent on this offender so that upon his release he will, it is cautiously hoped, be unlikely or less likely to re-offend. In addition to general deterrence, the need to deter this man from future offences is a potent factor in the sentencing process.87

Conclusion The factors discussed above objective seriousness of the offence, prospects of rehabilitation, and general and specific deterrence are obviously not the only factors

85 86 87

Ibid [45]. Adopted by Whealy J in R v Mulahalilovic [2009] NSWSC 1010 [49]-50]. [2006] NSWSC 691. Ibid [92].

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relevant to sentencing of individuals convicted of terrorism offences in Australia. Other factors that might be taken into account are, of course, the subjective circumstances of a convicted person (such as their health and family circumstances) and the conditions in which they have been and will be detained. However, these three factors are crucial to understanding why the 25 men convicted of terrorism offences in Australia have been sentenced to such long periods of imprisonment.

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Explaining Prison Populations: A Review of International Evidence Hilde Tubex Department of Corrective Services, Western Australia, Perth

Conference sub-theme: Penal Policy and Punishment in a Global Era

Abstract The last decades have been characterised by growing prison populations and increasing punitiveness, leading up to a Culture of Control as described by David Garland (2001), when explaining the developments in the US and UK since the seventies. Both occurrences have lead to a boost in criminological literature analysing prison populations from a macro or meso perspective. While the first set of literature looks at the broader political and social changes that industrialised countries have in common, the second emphasises the differences between jurisdictions and their possible explanations. It is indeed striking that, in an era of penal populism, the Scandinavian prison populations have remained stable and at a low imprisonment rate and that in some European countries as the Netherlands and Germany there is even a recent significant decline, while most Anglos-Saxon countries experience high imprisonment rates and ongoing increases. Australia mainly appears in the macro analyses, whilst there is very little evidence available on Australia as a case study. This paper will use the international analytical framework and test its validity for the West Australian situation. It will also examine if the experiences from abroad provide any solace for WA and try to identify ways forward.

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Introduction About a decade ago, David Garland published his book The Culture of Control (2001), in which he describes the penal evolution in the US and the UK over the past 30 years. Up till today, his book is commonly recognised as a standard work in explaining the recent evolution of prison populations. However, as was pointed out by other scholars (cf. Tonry 2001, 2006), the question remains to what extent this analysis is also applicable to other countries. Over the last ten years there has been a boom of criminological analyses exploring changes in the size of prison populations from macro or meso perspectives. While the first set of literature looks at the broader political and social changes that industrialised countries have in common, the second emphasises the differences between jurisdictions and their possible explanations (Snacken and Verfaillie, 2009). In this contribution, we present an overview of the most important findings of both lines of research. This literature review is the first stage of a broader study, testing the validity of models explaining imprisonment rates in other jurisdictions, to understand prison numbers in Australia and the differences thereof in states and territories. The project Reducing imprisonment rates in Australia: international experiences, marginal populations and the overrepresentation of Indigenous people, has been funded by the Australian Research Councils Future Fellow programme and will run from August 2011 to July 2015. The expected outcome of this overall study is to identify ways to reduce the prison population in Australia, and more particularly the over-representation of Indigenous people.

Macro Level Analysis: A Global Perspective Macro level analyses start from the presumption that global transformations in the economic and social context have impacted on the way we punish, leading to more punitive societies.

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These analyses focus on similar trends occurring in civilised societies, and various components have been identified as being related to punishment.

Welfare and Punishment In one of the first comparative studies in this area, Beckett and Western (2001) investigate the relationship between welfare and punishment in the US over the period 1975-1995. They describe how both the penal and social climate have become harsher over the last decades, and start from the hypothesis that they are part of a policy regime88 aimed at the governance of social marginality. They suggest that US state regimes are either inclusive; emphasising the social causes of marginality and the capacity of society to reintegrate deviants and therefore more welfare oriented and less punitive, or exclusionary; starting from the idea that marginal people are undeserving and incorrigible and are therefore less welfare oriented and more punitive. In their study, they not only demonstrate that states with less welfare spending have higher imprisonment rates, they also identify an overrepresentation of black Americans in these states, and the fact that this trend increases over time. Other factors related to higher imprisonment rates are relatively high levels of wealth and income disparity, poverty and Republican Party representation. Downes and Hansen (2006) build on this US study, expanding the Beckett and Western analysis to 18 OECD countries, including Australia, comparing imprisonment rates and percentages of GDP spent on welfare in 1998. They reach the same conclusion of an inverse relationship between imprisonment rates and levels of welfare spending during the nineties. That is, that increasing levels of national investment in social welfare are strongly statistically related to relatively low prison populations. Further, they calculate that if the welfare expenditure would not have increased during this period, prison populations would have been

88

As defined by Esping-Anderson (1990).

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even bigger. Downes and Hansen (2006: 154) argue that a substantial Welfare State is increasingly a principal, if not the main protection against the resort to mass imprisonment in the era of globalisation.

Penal Policy and Punishment Using the classification of policy regimes as defined by Esping-Andersen, Cavadino and Dignan (2006a and b) divide 12 countries into four family groups of penal systems; neoliberal, conservative corporatist, social democratic corporatist and oriental corporatist. They find that it is mainly the neo-liberal political economies, exemplified by the US but including other Anglo-Saxon countries such as Australia, New Zealand and England and Wales, that have high imprisonment rates89. Neo-liberalism is characterised by the free market principle, a minimal welfare state, material inequality, individualism and limited social rights, resulting in social exclusion and marginalisation of the ones that dont do well on the free market. Continental European penal systems are described as conservative corporatist with, in comparison, more generous welfare benefits and social rights, more inclusive, less inequality, and moderate imprisonment rates. The Scandinavian countries have social democratic corporatist systems, which are featured by generous welfare provisions, an egalitarian society with generous social rights and low imprisonment rates. The authors explore reasons for the relationship between neo-liberalism and punitiveness. They relate it to the cultural attitudes towards marginalisation, which are embodied in the political economy. The individualistic philosophy is intolerant of those who deviate, either in a social or economic way. Criminality is considered to be the result of free willed choices, for which it is not the responsibility of the state to interfere or rectify, and this leads to punitive societies with harsh penal systems.

89

It does, however, note that traces of social democratic principles persist in Australia and New Zealand.

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They refer to the two studies discussed above, stating that social inclusiveness and economic inequality are important indicators of differing social climates.

Political Systems, Minority Threats and Punishment Ruddell (2005) investigates the factors related to imprisonment in a sample of the 100 richest developed and developing nations. Controlling for other variables, he examines the relationship between: the retention of the death penalty and institutional conditions; imprisonment and social disruption; and imprisonment and population heterogeneity. His analysis reveals a positive association between incarceration rates and common law systems, as well as the existence and size of minority populations, as measured by the Stark multiculturalism index. The possible reasons for a positive relationship between common law systems and higher imprisonment rates might be that in these systems punitive ideas are more readily diffused and accepted through the media and political institutions, an effect grounded in traditionally more punitive cultural values and beliefs. Tonry (2001) earlier suggested that civil law systems would be more receptive for professional and expert advice, instead of penal policy being led by public opinion.

Trust and Punishment Finally, there is the study of Lappi-Seppl (2008) exploring seven factors that are possibly related to imprisonment rates in a basic sample of 25 industrialised countries, including Australia, and a larger sample of 99 countries ranked according to the UN Human Poverty Index. He identifies the most important factors as being: public sentiment (confidence in fellow citizens and government); strong welfare states; political structures and legal cultures. He asserts that prison populations can be explained neither by focussing on individual factors, nor by too general and complex theories. Explanations can be developed, he argues, through

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analysis of detailed country specific characteristics such as those he isolates. Lappi-Seppl also explores the minority-threat hypothesis; that population heterogeneity would lead to higher imprisonment rates, as mentioned above. He finds that the relationship is more complex, and related to the attitude people have towards immigrant populations: whether they are (not) welcome; expected to have a positive/negative impact; the country should take more/less. He concludes that demographic factors, including immigration, are not a straightforward explanation for levels of repression.

Macro Level Analysis and its Limitations The macro level perspective has been criticised on several occasions. Tonry (2001) was one of the first to point out that the American model as described by Garland has mainly impacted on other Common Law jurisdictions such as England and Australia - and even there the example has only been followed in a diluted form - but has had a limited impact elsewhere in Europe. According to Tonry (2001: 518), explanations of penal policy remain curiously local. Although the process of globalisation is important, it requires an in depth analysis of what has happened in individual jurisdictions to explain the discrepancies and the diversity within European countries. Snacken and Verfaillie (2009) recommend a multi level approach as the macro level analyses are characterised by their failure to explain diversity in punishment and criminal policy making and for being inadequate to provide the conditions for change.

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Meso Level Analysis: A European Comparative Perspective The best way to support the argument above is a quick overview of current imprisonment rates (number of prisoners per 100.000 total population)90 and their recent evolution. While most western liberal jurisdictions experienced a significant increase of prison populations since the start of the last quarter of the 20th century, there are some significant differences in the imprisonment rates. The rate of imprisonment in the US has increased seven fold since 1973 and stands at present at 743. Increases have also been substantial in the UK jurisdictions (152 in England and Wales), New Zealand (199) and Australia (133). Although there have also been increases in imprisonment in several mainland European jurisdictions, it is remarkable that there are wide variations in its extent. The imprisonment rates in Turkey (168) and Spain (159), for example, are now similar to the Anglo-Saxon jurisdictions, while those in France (102), Belgium (97) and Germany (85) remain substantially lower. Scandinavian and Balkan regions have stable and much lower rates (for example, Finland: 59, Slovenia: 65). In former Eastern block countries rates have fallen significantly since 1990 (for example, Hungary: 165, down from over 300 in the in early 1990's).

From the above, it becomes clear that Europe does not represent a homogeneous entity. Consequently, there are also a range of articles analysing what happened in particular jurisdictions. In the section below, we present a more detailed analysis of the criminal justice dynamics of some European countries, selected on the basis of their traditional differences with the UK-US model, as described by Garland
91

. We will more particularly investigate

when criminal policy became an important item, and what the main influences are that have

90

All the imprisonment rates used in this section are based on the World Prison Brief (Available at: http://www.prisonstudies.org/ - consulted on 14.07.2011) as this is a consistent and regularly updated source for imprisonment data. However, it needs to be mentioned that these figures are based on the definitions used in the different jurisdictions, which might be different, and therefore bias the information. 91 For earlier versions of this kind of exercise, see Snacken, Beyens and Tubex, 1995 and Tubex and Snacken, 1995.

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impacted on the policy, as well we discuss some country specific and significant features in this respect.

France: Human Rights and Mild Punitiveness As in most other European jurisdictions, the prison population in France has expanded since the mid seventies, with one important decline in 1982 after the victory of the Socialist President Mitterand after 23 years of uninterrupted rule of the Right (Lvy, 2007; Roch, 2007). During the eighties and nineties there is a slow but steady increase, this upward movement is alleviated by amnesties and pardons, causing significant dips in the curve but not significantly altering the trend. The last decade imprisonment rates are seesawing upwards till 2009, after which they level off. The imprisonment rate in 1975 is 49, in 1995 it is 89 and currently 102 (Kensey, 2006; 2010).

Amnesties and pardons always have had an important impact on prison numbers in France. While all legal systems have forms of clemency, they are something of a significant feature of French penal politics. Since 1988 pardons are taken on an annual basis and their effects are now integrated in the prison population forecasts, and they deflate the prisons with up to 21% of the prison population being released after a collective pardon (Lvy, 2007). Increasing concern for crime has caused restrictions to the use of clemency measures, excluding new categories of offenders every time, but it is still surprising that they are not subject to major controversy among politicians or the general public, or make the front page of the news papers. Lvy (2007) sees the institutional organization of judicial powers in France as a possible explanation, but also the fact that clemency measures have never been politicized, and on a more practical level, it addresses prison overcrowding and every citizen

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can potentially benefit from it. But clemency measures are not the only explanation for the relative stability of the French prison population.

Until the seventies, prison issues and penal policy were hardly matters of public debate. This changed through the seventies, due to increases in the crime rates and prison riots. Insecurity and punishment became subject of controversy and entered the political agenda, reaching a peak with the 1981 presidential election campaign. Since then, sentencing policy is an integral part of political debate, the left wing putting more emphasis on prevention and rehabilitation and the right wing more on retribution and incapacitation. However, making up the balance over the last 30 years, there is no clear cut division and both parties have introduced diversionary measures and improved prisoners rights, but also build more prisons and established harsher sentences (De Maillard and Roch, 2004; Lvy, 2007; Roch, 2007). However, both parties agree on the fact that imprisonment needs to be seen as a last resort, a necessary evil needed for incapacitation rather than for rehabilitation (Lvy, 2007: 585).

There are definitely signs of increased punitiveness, along the lines of what was described by Garland: the introduction of longer sentences for certain types of serious offences such as sex offences and violent offences and of periods of security, increases in the average duration of imprisonment, causing prison overcrowding and bad prison conditions (Tubex and Snacken, 1995, Roch, 2007; Daems, 2007), a stronger identification with the victim leading to penal populism and a growing criminology of the other (Salas and Lvy in Daems, 2007). But there are also opposite signs: the death penalty was abolished at a time that it had majority public support (1981), maximum security units were introduced in 1975 and prohibited in 1982, and alternatives for prison were introduced. Roch (2007) identifies the French penal climate as one of mild punitiveness.

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French penal policy is in general very little influenced by scientific research or expert opinions. Criminology is not a developed academic discipline in France, and field workers are scarce (De Maillard and Roch, 2004), however, there is a rich body of literature that has been produced by sociologists, demographers, historians, political scientists and legal theorists, which distribution is, however, often hampered by language barriers.

We reach the conclusion that what characterizes the French situation is that, while they have endured the same global trends of rising crime rates in the sixties and the economic decline since the seventies, both politicians and the public have so far not broken with their long standing tradition of human rights and the humanistic conception of punishment, which are perceived as a bulwark against punitiveness (Snacken, 2010). There is still a critical attitude towards the powers of the state to infringe on the individual freedom by punishment, as evidenced in the work of Loic Wacquant and others.

Germany: A Rational Approach What is remarkable about German prison statistics is that Germany was able to reduce significantly its prison population - by about 22% - in the eighties, while in most other countries imprisonment was on the increase. Analysis shows that this is mainly a result of the exercise of judicial discretion, more specifically of a consequent choice of the judges and prosecutors to limit the use of short prison sentences in favour of conditional sentences and non-custodial sanctions, and this as a result of a waning faith in the effectiveness of prison (Tubex and Snacken, 1995; Salle, 2003; Oberwittler and Hfer, 2005). Interesting is that recently, Germany is once more one of the only countries where the imprisonment rate is on

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the decline; from 98 in 2003 to 85 in 2010 (World Prison Population List, edition one to eight, and World Prison Brief).

In Germany, penal policy appeared on the public and political agenda in the nineteen-sixties, as a result of student and activist action revealing hard prison conditions and sensitising public opinion. This eventually led in 1977 to an important review of the law on the implementation of punishment (das Strafvollzugsgezetz), which proposed resocialisation as the primary aim of punishment and normalisation as an important mean to achieve that aim. At the beginning of the seventies socio-therapeutic prisons were introduced and prison conditions improved indeed, but by the time the StVollzG was completed, it had lost its momentum and the reform could never meet the overall expectations (Salle, 2003).

Since the 1990s, Germany has witnessed dramatic political changes and important socioeconomic challenges; there was the fall of the Berlin wall and increased waves of migration from communist states and Yugoslavia, to mention just some (Oberwittler and Hfer, 2005). As a consequence of the reunification of West and East Germany an increase in the prison population occurred. During the nineties the prison population rose, due to rising violent crime, an increase in the average length of sentence and more restricted release practices. Public concern related to crime intensified after the reunification in 1989, as a result of the influx of immigrants and rapid social and political changes. Regular opinion polls show that the increase peaked in 1993 and subsequently eased (Salle, 2003; Oberwittler and Hfer, 2005). German crime policies traditionally remain in the hand of experts and bureaucrats, which are informed by independent and critical criminological research with a strong legalistic influence (Salle, 2003; Oberwittler and Hfer, 2005).

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As Oberwittler and Hfer (2005) observed, it is remarkable that satisfaction with public safety recovered so quickly. We conclude with them that Germany can certainly not be considered as a high-crime society. So far, crime and punishment are not high on the electoral agenda and fines and non-custodial measures are still the most frequently used sentences (Meier, 2004). Rehabilitation is still valid, with social-therapeutic institutes playing an important role in punishment (Tubex, 2006).

The Netherlands: Intriguing Fluctuations The Netherlands are a particularly interesting case as they traditionally had the reputation of a progressive, humane and tolerant penal climate. The detention rate was one of the lowest in Europe, the majority of prison sentences were of short duration, early release was applied automatically without conditions and regimes in the prisons were fairly liberal. However, towards the end of the eighties and the beginning of the nineties, this exemplary image starts to fade (Tubex and Snacken, 1994). During the last two decades, the Netherlands were the only country keeping up with the American-style increase of the imprisonment rates, and their prison population multiplied by seven between 1975 (17) and 2005 (124). Then recently, they experienced a significant fall of their imprisonment rates (from 128 in 2006 to 94 in 2010)(World Prison Population List seventh edition and World Prison Brief), resulting in overcapacity, which they now have rented out to accommodate Belgian prisoners.

Strange enough, this striking evolution hardly led to any local criminological analyses (Van Swaaningen, 2006). There is of course, the standard work of David Downes (1988) and he has been looking back at what happened with this country of tolerance. Together with van Swaaningen (2007), he identifies the following influential factors: an increase in the size and

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nature of crime during the eighties; an emerging war on drugs and international pressure in this respect; and growing concern about immigration. This caused a changing moral climate that affected the public opinion as well as politicians, and getting tough on crime climbed on the political agenda. Tolerance was overtaken by irritation about the other, disturbing the Dutch society. After a couple of shocking incidents (9/11, the murder of a right wing politician and of an anti Muslim film director), the other was associated with inadequately integrated deviant immigrants. All this translated in a more punitive approach throughout the whole penal process: the mean length of sentences of imprisonment increased; automatic early release was abolished; and two-thirds of unsentenced and half of the sentenced prison population found themselves under a standard regime which is described as sober but humane92. Further, there is a growing categorized approach, introducing all sorts of specialist regimes for problematic groups (Downes and van Swaaningen, 2007).

Important is also the changing role of the criminological expert. While in the early days the criminologists from the Utrecht school left a discernable mark on penal policy, over time, research in penal matters moved to private and more managerially oriented entities. As a result, studies focus more on forms of criminality and the efficiency of penal policy, and less on the criminal justice system (Van Swaaningen, 2006; Downes, 2007). Forecasting what is going to happen in the Netherlands has proven to be tricky. However, for now, we still have hopes that the longstanding tolerant tradition of the Dutch society, will safeguard them from going down the US path.

92

However, a recent study by Kruttschnitt and Dirkzwager (2011) demonstrates that the early findings of Downes (1988) regarding the depth of the carceral experience are to be confirmed.

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The Scandinavian Countries: An Example of Persistent Reductionism Finally, an analysis of the Scandinavian93 countries cannot be absent, as their imprisonment rates remain stable over the last half a century and are way below the European level (at around 60-70). Further, it is not only the fact that Scandinavian countries manage to keep their prison numbers low, they also provide prison conditions that are exemplary (Pratt, 2008a; Pratt and Eriksson 2011).

For that reason, Scandinavian countries have been well studied to explain their Scandinavian exceptionalism. Scandinavia was, together with the US, one of the regions where the rehabilitative idea was widely implemented and, consequently, became strongly criticized because of the perverse effects of the treatment ideology. In contrast with the US however, their adoption of the just desert philosophy did not lead to a more punitive approach94 and increasing detention rates, even in the period when crime rates increased (1965-1990) (LappiSepl, 2000, Pratt, 2008a; Pratt and Eriksson 2011).

There is substantial agreement among scholars on the most important pillars of the Nordic penal system: a societal model with highly egalitarian cultural values and social structures; reinforced by population and religious homogeneity; a sustained commitment to social welfare policies95; a consensual government model that generates high levels of social trust and legitimacy; an independent judiciary of young, liberal and criminology trained

professionals; the strong influence of knowledge and expert opinion; and a media reporting being sober and informed on crime matters (Lappi-Sepl, 2000; 2007; Pratt, 2008a and b).

93 94

The countries reviewed are Finland, Norway and Sweden. It should be noted here that initially, the just desert idea in the US also stood for a liberal and reductionist approach, but in practice it became a repressive and incapacitative model (Tubex, 2002). 95 Good social policy is the best criminal policy (Lappi-Seppl, 2007: 274).

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The best example that the penal situation is a matter of choices, is the Finnish success story, realizing a decrease of their imprisonment rates from 200 in the fifties to around 60 at the beginning of the nineties, as the government decided that there was no convincing way to justify why the Finnish prison population should be four times the size of their Nordic neighbours. The decrease resulted from important initiatives of decriminalisation and depenalisation, promoting the use of alternatives that truly replace imprisonment and general prevention (Lappi-Sepl, 2000).

However, since the late 1990s, imprisonment rates in Scandinavia have experienced a relatively small, but significant increase, which causes concern about the future and the sustainability of their approach. The rise of the prison population is mainly related to a more punitive approach of specific offences that are considered particularly serious, such as drugs and violence, and there are signs of an increasing politisation of crime and a decline of the role of the expert. According to Pratt (2008b), it is mainly Sweden which risks losing its exceptional status, while the model remains most solid in Finland. However, both LappiSeppl (2007) and Pratt (2008b) conclude that the changes should not be exaggerated and that the overall tradition of a rational and humane criminal policy remains intact.

Conclusion From the literature reviewed above, we can conclude that over the years and various studies, some consensus has emerged on factors explaining fluctuations in prison populations. The most important lesson is that there is not one factor that individually can explain imprisonment rates. There is, however, a cluster of features that are associated with lower / higher levels of punitiveness. Inclusive societies with strong welfare systems and corporatist political economies are a safeguard against an extensive use of imprisonment. They are not

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only more tolerant towards deviance, but they also find ways to deal with deviance other then punishment. Consensus governments also seem to do better in this respect as they rather go for the compromise somewhere in the middle instead of more extreme solutions, and they are also more likely to support a strong welfare state. Further, the conflict model might feed into more penal populism and a different relationship with the media. The impact of public opinion and the media then at their turn, have an inverse relationship to the impact of expert opinion and rational decision making. As civil law countries are more reluctant in the power they are willing to give to the state, the powers of the judiciary are more limited and they have a different status. The independence of the judiciary and the judicial culture is also different in both legal systems, leaving common law countries more vulnerable to repressive policies. Finally, egalitarian societies seem to be less punitive, but it depends on whether controversies over the source of immigration lead to greater punitiveness.

The aim of the ARC Future Fellowship project, for which this first review forms the basis, is to explore the relevance of the international experience in explaining increasing prison numbers for the Australian situation. A specific focus will be on the imprisonment of minorities and marginalised groups, and to suggest solutions to the problem of hyperincarceration of the Indigenous people.

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Cavadino M and Dignan J (with others) (2006b) Penal systems: A comparative approach. London: Sage publications. Daems T (2007) Engaging with penal populism. The case of France. Punishment & Society 9: 319-324. De Mailard J and Roch S (2004) Crime and justice in France: Time trends, policies and political debate. European Journal of Criminology 1: 111-151. Downes D (1988) Contrasts in tolerance. Post-war penal policy in the Netherlands and England and Wales. Oxford: Clarendon Press. Downes D (2007) Visions of penal control in the Netherlands. Crime and Justice, A Review of Research 36: 217-296. Downes D and Hansen K (2006) Welfare and punishment in comparative perspective. In: S. Armstrong and L. McAra (eds) Perspectives on Punishment: The Contours of Control. Oxford, New York: Oxford University Press: 133-154. Downes D and Van Swaaningen R (2007) The road to dystopia? Changes in the penal cimate of the Netherlands. Crime and Justice, A Review of Research 35: 31-71. Esping-Anderson G (1990) The three worlds of welfare capitalism. New Jersey: Princeton University Press. Garland D (2001) The culture of control. Crime and social order in contemporary society. Oxford, New York: Oxford University Press.

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Kensey A (2006) Les dtenus de 1996 2006, quelques donnes comparatives. Cahiers de dmographie pnitentiaire 19. Direction de ladministration pnitentiaire, Ministre de la Justice. Kensey A (2010) Dix ans dvolution du nombre de personnes croues de 2000 2010. Cahiers dtudes pnitentiaires et criminologiques 35. Direction de ladministration pnitentiaire, Ministre de la Justice. Kruttschnitt C and Dirkzwager A (2011) Are there still contrasts in tolerance? Imprisonment in the Netherlands and England 20 years later. Punishment & Society 13: 283-306. Lappi-Seppl T (2000) The fall of the Finnish prison population. Journal of Scandinavian Studies in Criminology and Crime Prevention 1: 27-40. Lappi-Seppl T (2007) Penal policy in Scandinavia. Crime and Justice, A Review of Research 35: 217-296. Lappi-Seppl T (2008) Trust, welfare, and political culture: Explaining differences in national penal policies. Crime and Justice, A Review of Research 37: 313-387. Lvy R (2007) Pardons and amnesties as policy instruments in contemporary France. Crime and Justice, A Review of Research 36: 551-590. Meier B D (2004) Alternatives to imprisonment in the German criminal justice system. Federal Sentencing Reporter 16: 222-231. Oberwittler D and Hfer S (2005) Crime and justice in Germany: An analysis of recent trends and research. European Journal of criminology 2: 465-508.

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Pratt J (2008a) Scandinavian exceptionalism in an era of penal excess, Part I: The nature and roots of Scandinavian exceptionalism. British Journal of Criminology 48: 119-137. Pratt J (2008b) Scandinavian exceptionalism in an era of penal excess, Part II: Does Scandinavian exceptionalism have a future? British Journal of Criminology 48: 275-292. Pratt J and Eriksson A (2011) Mr Larsson is walking out again. The origins and development of Scandinavian prison systems. Australian & New Zealand Journal of Criminology 44: 7-23. Roch S (2007) Criminal justice policy in France: Illusions of severity. Crime and Justice, A Review of Research 36: 471-550. Ruddell R (2005) Social disruption, state priorities, and minority threat: A cross national study of imprisonment. Punishment & Society 7: 7-28. Salle G (2003) Situation(s) carcrale(s) en Allemagne. Prison et politique. Dviance et Socit 27: 389-410. Snacken S (2010) Resisting punitiveness in Europe? Theoretical Criminology 14: 273-292. Snacken S, Beyens K and Tubex H (1995) Changing prison populations in Western countries: fate or policy? European Journal of Crime, Criminal Law and Criminal Justice 1: 18-53. Snacken S and Verfaillie K (2009) Media, public opinion and (criminological) research. In H. Eisendrath and J P. Van Bendegem (eds) It takes two to do science (pp. 159-182). Brussel: VUB Press. Tonry M (2001) Symbol, substance and severity in Western penal policies. Punishment & Society 3: 517-536.

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Tonry M (2006) The prospects for institutionalization of restorative justice initiatives in Western countries. In I. Aertsen, T. Daems and L. Robert (eds). Institutionalising Restorative Justice (pp. 1-23). Collumpton, Devon and Portland: Willan Publishing Press. Tonry M (ed) (2007) Crime, punishment, and politics in comparative perspective. Crime and Justice, A Review of Research 36. Chicago: Chicago University Press. Tubex H (2002) Dangerousness and risk. From Belgian positivism to new penology. In: N. Hutton and C. Tata (eds) (pp. 452-468). Sentencing and Society: International Perspectives. Burlington: Ashgate. Tubex H (2006) Sex offender policies in five countries. ESC, Newsletter of the European Society of Criminology 5: 16-19. Tubex H and Snacken S (1994) Punitiviteit in Nederland, teloorgang van een voorbeeld? Langgestraften en gevaarlijke gedetineerden in internationaal perspectief. In M. Moerings, Hoe punitief is Nederland (pp. 331-347). Arnhem: Gouda Quint. Tubex H and Snacken S (1995) Lvolution des longues peines. Aperu international et analyse des causes. Dviance et Socit 19: 103-126. Van Swaaningen (2006) Criminology in the Netherlands. European Journal of Criminology 3: 463-501. Walmsley R Prison Population List (1st to 8th ed.). London: Kings College, International Centre for Prison Studies. World Prison Brief (Available at: http://www.prisonstudies.org/ - consulted on 14.07.2011)

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Indigenous Justice

Indigeneity and Non-Custodial Orders: Comparing Different Sentencing Outcomes in Queenslands Higher Courts

Corresponding author: Christine E.W. Bond School of Justice, Queensland University of Technology

GPO Box 2434, Brisbane QLD 4001 Email: christine.bond@qut.edu.au

Samantha Jeffries School of Justice, Queensland University of Technology

Conference sub-theme: Indigenous Justice

Abstract Most research on Indigenous sentencing disparities has focused on the decision to imprison and subsequent length of prison term. In Australia, we know very little about the impact of Indigenous status on other sentencing outcomes. Using data from Queenslands higher courts, we statistically explore this gap in our understanding of the treatment of Indigenous offenders before Australian criminal courts.

Keywords: sentencing; non-custodial orders; Indigenous offenders

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Introduction To date, Australian research exploring the relationship between Indigenous status and sentencing decisions has focused on the decision to imprison and length of imposed prison terms. To identify the influence of Indigenous status on these custodial sentencing outcomes, Australian researchers have used multivariate statistical techniques to disentangle the influence of other potential sentencing factors and, thus estimate the direct effects of Indigeneity. Currently, Australian research suggests that Indigenous offenders are not more likely to receive a prison sentence, after adjusting for other known sentencing determinates (e.g. current offence severity and past criminal history). With regard to sentence length, results are mixed, varying according to Australian jurisdiction and court level (i.e. higher or lower courts). After other sentencing variables are held statistically constant, longer, shorter and equal terms of imprisonment are given to Indigenous versus non-Indigenous defendants. (For recent Australian studies on custodial sentencing outcomes, see Bond and Jeffries, 2010, 2011a, 2011b, 2011c; Bond et al, 2011b; Jeffries and Bond, 2009; Snowball and Weatherburn, 2006, 2007).

Because the focus of Australian Indigenous sentencing disparities research has been on imprisonment, we know little about the impact of Indigeneity on non-custodial orders. In this paper, we address this gap by reporting results from exploratory analyses of non-custodial sentencing outcomes in Queenslands higher courts by Indigenous status. These analyses are based on a broader examination of Indigeneity and sentencing in this jurisdiction (see Bond et al, 2011a).

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Factors Known to Impact Sentencing: Queensland Legislation and Past Research In Queensland, sentencing courts have a broad discretion to take into account a wide range of circumstances surrounding offenders and their offences in making sentencing decisions. Under Queenslands Penalties and Sentences Act 1992, courts can consider: the offenders character, age, and intellectual capacity; the offenders prior offending record; the nature of the offence and harm caused by the offender; as well as likelihood of rehabilitation and evidence of remorse (s.9(2)). In addition, in sentencing Indigenous offenders, the court must consider submissions made by community justice group representatives, which may include cultural considerations (s.9(2)(p)).

Similarly, past empirical research indicates that, in addition to race/ethnicity/Indigeneity, the following factors or variables may influence sentencing outcomes: age, sex, familial situation (e.g. responsibility toward and ties to others), employment status, current case characteristics (e.g. seriousness of offence, offenders role in the offence, presence of co-offenders, offence location, premeditation), criminal history, court process factors (e.g. plea, conviction counts, remand), and culpability or blameworthiness variables (e.g. personal histories of abuse/victimisation, health statuses) (see e.g. Albonetti, 1991; Allen, 1987; Ashworth, 1995; Daly, 1994; Daly and Bordt, 1995; Jeffries, 2002a, 2002b; Rattner, 1996; Wu and Spohn, 2009). Thus, determining the impact of Indigeneity on sentencing requires disentangling the influence of these other potential sentencing determinates.

In the current study, we use multinominal regression models to explore non-custodial sentencing in the higher courts. Our primary research questions is: Does Indigeneity have a direct effect on non-custodial sentencing decisions in Queenslands higher courts (i.e. District and Supreme) for adult defendants, once other key sentencing factors are controlled?

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Study Sample, Measures and Descriptive Information We use case-level data compiled by Queenslands Department of Justice and Attorney General (JAG). The JAG data provide information on sex, Indigenous status, age at the time of sentencing, offence seriousness, final plea, and sentence type. However, other important information is not available (such as remand status, criminal history, social background information). Consequently, we selected a random sample of 1,200 adult sentencing events occurring between June 2006 and June 2008 in Queenslands higher courts. The sample was stratified equally by sex and Indigenous status to allow for further data collection from sentencing transcripts and criminal history files. Due to the unavailability of some transcripts or criminal history files, our final sample consists of 1,179 cases (or 98.3% of the original sample). Of these, 650 (55.1%) received non-custodial orders, and had complete information on the independent variables of interest. In sum, our analytic sample consisted of 44.5% Indigenous offenders and 52.9% female, with a mean age of 31.4 years.

To assist in the interpretation of patterns, non-custodial sentencing outcomes were grouped into types of orders (the dependent variable). Specifically, we created a categorical variable with the following values: (1) suspended sentences of imprisonment96; (2) bond with supervision orders (e.g. intensive corrections order and probation); (3) other non-custodial orders not including disqualification of drivers licence and monetary orders); (4) convicted but discharged.

Although at first glance the category of other non-custodial orders may appear to include a rather diverse range of sentences, there were two rationales for this grouping. First, the small

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Recall that for these analyses, suspended sentences of imprisonment are treated as non-custodial orders, as offenders are released back into the community, only potentially serving a term of imprisonment upon breach.

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number of cases in some sentencing orders meant that we needed to group orders together for meaningful empirical analyses. Second, each of these sentences results in offenders being released into the community under particular conditions, but without higher levels of supervision (e.g. good behaviour bond, community service order).

We collected information on four groups of independent variables for our analyses of the relationship between Indigenous status and the groups of non-custodial sentencing orders. The four groups of independent variables are:

(1) Offender characteristics. Indigenous status (coded as 1) is self-reported in Queensland. Offenders in the JAG database who were listed as unknown or refused were dropped from the analyses. (The proportion of sentencing events where the Indigenous status of the offender was unknown or refused was just over 6%) All other offenders were treated as non-Indigenous (coded as 0). In addition to Indigenous status, we also control for sex (1=female; 0=male) and age at sentencing (in years).

(2) Past and current offending. In the analyses, criminal history was measured as a standardised additive index of number of prior convictions, number of prior convictions in the same offence category as the current sentenced offence, and number of prior terms of imprisonment in the jurisdiction of Queensland. The seriousness of the principal offence97 was measured using the National Offence Index (NOI). Developed by the Australian Bureau of Statistics, the NOI ranks all

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Using a definition derived from the South Australian Office of Crime Statistics and Research, principal offence refers to the offence that received the highest sentencing penalty, with prison being the highest. If two offences received the same penalty, the offence with the highest statutorily-defined penalty is the principal offence. If the charges are the same, the first charge is used.

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offence classifications contained within the Australian Standard Offence Classification System in order of seriousness from 1 to 155 with 1 being the most serious and 155 being the least serious. We then reverse coded the score to make the analyses more readable, so that higher scores indicated more serious offences. The presence of multiple conviction counts (1=multiple counts present; 0=no multiple counts) was used as an additional measure of offence seriousness. Type of plea (1=guilty plea) and offenders last known remand status (1=bail)98 were also included. Remand status was coded from last known in-custody status recorded in the adult court database before the data of the sentencing hearing.

(3) Context of the offence. Our analyses include two dummy variables that described the context of the current offence, namely: evidence of premeditation (1=yes; 0=no); and offence location (1=private place; 0=other). This information was coded from the District and Supreme Court sentencing transcripts.

(4) Offenders social history. We coded offenders childcare responsibilities (1=has childcare responsibilities; 0=none), substance abuse history (1=has substance use problems; 0=none noted), employment (1=employed; 0=not noted), and health status (1=poor health; 0=none noted). Social history information was coded from the sentencing transcripts. Study Findings To explore the effect of Indigenous status on non-custodial sentencing outcomes, we conduct our analyses in two stages. First, we examine the baseline differences between Indigenous and non-Indigenous defendants. Second, we report the results of exploratory multinomial

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On remand could not be used as it introduced collinearity into the analyses. Thus, we rely on whether or not the last known remand status of the offender was released on bail.

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regression analyses, showing the main direct effects of Indigenous status on non-custodial orders.

Baseline Differences by Indigenous Status Table 1 reports the descriptive statistics for our higher court sample. As demonstrated in this table, there is a statistically significant relationship between Indigenous status and some noncustodial sentencing outcomes. A greater proportion of Indigenous offenders were discharged but convicted (31.5% vs 21.1% respectively), but a significantly smaller proportion of Indigenous offenders received other non-custodial orders (12.8% vs 21.6% respectively), compared to non-Indigenous offenders.

Further, as shown in Table 1, there are notable differences by Indigeneity in offender demographics, case and offending characteristics, offence contexts and social histories. More specifically, compared to non-Indigenous defendants, Indigenous offenders had significantly higher mean criminal history scores (0.22 vs -0.66), were more likely to be identified as having offended with a degree of premeditation (21.1% vs 1.4%) and were younger (mean ages of 29.8 years vs 32.8 years). Indigenous defendants were also significantly less likely to have entered a final plea of guilty (71.3% vs 85.0%). In our sample, Indigenous offenders were never identified as employed, as having childcare responsibilities, or as having health problems.

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Table 1. Descriptive Statisticsa by Indigenous Status, Non-Custodial Outcomes Only (Adult Higher Courts, Queensland, 2006-2008)
Total % Indigenous % female Mean age Mean prior criminal history index Mean seriousness principal offence % with multiple conviction counts % with plea of guilt % released on bail (last known) % occurred in private residence noted % evidence of premeditation noted % childcare responsibilities noted % presence of employment noted % poor health noted % substance use/abuse noted 44.46 52.92 31.42 (10.16) -0.281 (2.30) 90.56 (42.92) 8.46 78.92 38.62 12.31 10.15 9.38 5.38 6.46 10.15 Indigenous --51.90 29.76 (8.98) 0.22 (2.59) 91.81 (44.49) 8.65 71.28 39.10 0.0 21.11 0.00 0.00 0.00 9.69 Non-Indigenous --53.74 32.75 (10.85) -0.68 (1.95) 89.55 (41.66) 8.31 85.04 38.23 22.16 1.39 16.90 9.70 11.63 10.53 n.s. *** *** n.s. n.s. *** n.s. *** *** *** *** *** n.s. Sig.

% convicted but discharged % suspended sentence of imprisonment % bond with supervision order % other non-custodial order Number of cases
# p<0.10; * p<0.05; **p<0.01; ***p<0.001 Note:
a

25.69 30.46 26.15 17.69 650

31.49 27.68 28.03 12.80 289

21.05 32.69 24.65 21.61 361

** n.s. n.s. **

Percentages are reported for dichotomous variables. Means (with standard deviations in brackets) are reported for continuous

variables. For continuous variables, a t-test was calculated to test the equality between group means; for dichotomous variables, a z-test was calculated to test the equality between group proportions.

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Direct Effect of Indigenous Status Multinomial regression analyses were used to estimate the separate direct impact of Indigenous status on non-custodial sentence outcomes (the dependent variable) while controlling for other key sentencing determinates (independent variables). We controlled for offender demographics, case and offending characteristics, context of the offence and offenders social history. Table 2 presents the results of our multinomial models of Indigenous status on the likelihood of difference non-custodial orders, adjusting for other offender and case characteristics. We report the relative risk ratio for Indigenous status, which estimates the unique direct impact of Indigenous status for one non-custodial sentencing outcome compared to another outcome (e.g. the odds of an Indigenous offender receiving a suspended sentence of imprisonment as opposed to a supervised bond order).

Before discussing the results, a few technical points need to be made. First, although coded, some sentencing factors could not be included (such as offenders role in the commission of the offence, the presence of co-offenders), as there was insufficient variation within our sample (5% or less of the sample in a category). Second, we cannot account for selection bias due to lack of information on earlier decision-making stages.

As shown in Table 2, our analyses suggest that the difference between Indigenous and nonIndigenous offenders focuses on other non-custodial orders. Compared to non-Indigenous offenders, Indigenous offenders are almost 2 times as likely to receive a suspended imprisonment order rather than other non-custodial orders; and approximately 2.1 times as likely to received a supervised bond order than other non-custodial orders. Although not significant at conventional levels, Indigenous offenders are also about 2.1 times as likely to be discharged but convicted rather than other non-custodial orders (p<0.1). All other contrasts
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were not significant and their estimated effects were close to equal odds (i.e. an estimated relative risk ratio close to 1.0). This pattern of findings suggests that, unlike for nonIndigenous offenders other non-custodial orders such as good behaviour bonds are not the preferred non-custodial sentencing option for Indigenous offenders sentenced in Queenslands higher courts, once we have taken account of other sentencing factors.

Table 2. Direct Effect of Indigenous Status on Non-Custodial Outcomes, adjusting for Key Case and Offender Characteristics (Adult Higher Courts, Queensland, 2006-2008)
Comparison Supervised bond order vs suspended imprisonment order Other non-custodial order vs suspended imprisonment order Discharged but convicted order vs suspended imprisonment order Suspended imprisonment order vs supervised bond order Other non-custodial order vs supervised bond order Discharged but convicted order vs supervised bond order Suspended imprisonment order vs other non-custodial order Supervised bond order vs other non-custodial order Discharged but convicted order vs other non-custodial order Suspended imprisonment order vs discharged but convicted order Supervised bond order vs discharged but convicted order Other non-custodial order vs discharged but convicted order Number of cases Pseudo R2 2(d.f.) # p<0.10; * p<0.05; **p<0.01; ***p<0.001 rrr (s.e.)a 1.071 (0.302) 0.500 (0.164)* 1.033 (0.433) 0.934 (0.263) 0.467 (0.140)* 0.965 (0.397) 1.999 (0.655)* 2.141 (0.685)* 2.066 (0.825)# 0.968 (0.406) 1.036 (0.426) 0.484 (0.193)# 650 32.82 583.83(42)***

Note: a Reports estimated relative risk ratio for Indigenous status, controlling for gender, age at sentencing, prior criminal history index, offence seriousness, presence of multiple conviction counts, occurred in a private residence, evidence of premeditation, plea of guilty, on bail, presence of childcare responsibilities, presence of employment, poor health noted, ongoing substance use/abuse noted.

Summary/Conclusion This paper identified whether there was empirical evidence of a direct effect between Indigenous status and non-custodial sentencing decisions for adult offenders convicted in Queenslands higher courts. Overall, our results showed a significant direct effect for other non-custodial orders: Indigenous offenders were less likely to receive other non-custodial orders (primarily good behaviour bonds and community service orders) than non-Indigenous offenders in similar statistical circumstances. (Recall that these findings are of a direct effect
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for Indigenous status are in comparison to suspended sentences, supervised bond orders and discharged but convicted orders.)

There are is an important caveat on these findings. Although we were able to collect information on a range of mitigating and aggravating factors in the higher courts, these measures are:

(1) limited (i.e. information was coded from judicial sentencing remarks meaning that the absence of statements regarding certain sentencing factors does not necessarily mean they were not known by the judge and/or impacted their sentencing decisions) (2) incomplete (as evidenced by a loss in sample numbers during our analysis). This suggests that the above Indigenous/non-Indigenous differences may be explained by unmeasured, or more precise measures, of legal and social factors.

In these circumstances, speculation about possible reasons for non-custodial sentencing differences in the higher courts may be somewhat premature. Nonetheless, broader project consultations with Indigenous criminal justice groups, judges/magistrates and police prosecutors may provide some possible insight into the disparities around the use of particular types of non-custodial orders (such as community service orders) in the higher courts. During the consultation process, these stakeholders frequently noted that communitybased sentencing options in remote and outer regional locations were limited (see Bond et al, 2011a). This issue differentially impacts Indigenous defendants because they are more likely to reside in such locations. Thus, although Queensland Corrective Services has opened probation and parole offices in a number of remote areas, the ability to fulfil the requirements

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of non-custodial orders such as community service remain limited in outer regional and remote locations. Typically in statistical sentencing disparities research, disparities would be located within the theoretical framework of focal concerns (e.g. Steffensmeier et al, 1993, 1998). This perspective argues that judges sentencing decisions are driven by three focal concerns: blameworthiness; community protection (or risk to the community); and practical constraints and consequences (Steffensmeier et al, 1998). However, its application in the context of noncustodial orders is unclear, as non-custodial, or community-based and fine, options involve releasing offenders back into the community. To date, focal concerns perspective has been applied for judicial decisions involving incarceration, such as the decision to imprison (e.g. Steffensmeier et al, 1998) or the pre-trial decision to remand in custody (e.g. Freiburger and Hilinski, 2010).99 Its appropriateness to judges deciding between community-based sanctions has not yet been explored; perhaps because most statistical disparities research is North American, where the range of community-based alternatives tends to be more limited than in Australian jurisdictions. This exploratory study cannot resolve this issue. However, to the extent that focal concerns may be applicable, our research suggests that practical constraints around the ability to undertake certain types of non-custodial orders in non-urban locations may dominate decisions about the use of community-based sanctioning.

Funding This work is based on a project undertaken for the Department of the Premier and the Cabinet (Queensland, Australia). This paper does not reflect the views or policies of the Queensland Government.

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Some earlier sentencing disparities research used sentencing severity scales. However, as this research is predominately North American, there are generally few community-based alternatives other than probation (i.e. incarceration, probation, fines) (see e.g. Curran 1983).

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Acknowledgements We acknowledge our debt to all those in the Department of the Premier and the Cabinet (Queensland), Department of Justice and the Attorney-General (Queensland), Queensland Courts and the Queensland Police Service who supported and facilitated this project. We also appreciate the research assistance of Michael Cerruto, Denise Foster, Justine Hotten, Ashnil Murray, Mark Grosert and Angela Thistlethwaite.

References Albonetti C A (1991) Sentencing under the federal sentencing guidelines: Effects of defendant characteristics, guilty pleas, and departures on sentence outcomes for drug offenses. Law and Society Review 31(4): 789-822. Allen H (1987) Justice unbalanced: Gender, psychiatry and judicial decisions. Philadelphia: Open University Press. Ashworth A (1995) Sentencing and criminal justice (2nd ed.). London: Butterworths. Bond C and Jeffries S (2010) Sentencing Indigenous and non-Indigenous women in Western Australias higher courts. Psychiatry, Psychology and Law 17(1): 70-78. Bond C and Jeffries S (2011a) Indigeneity and the judicial decision to imprison: A study of Western Australias higher courts. British Journal of Criminology 51: 256-277. Bond C and Jeffries S (2011b) Harsher sentences? Indigeneity and prison sentence length in Western Australias higher courts. Sociology. In press.

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Bond C and Jeffries S (2011c) Indigeneity and the likelihood of imprisonment in Queenslands adult and childrens courts. Psychiatry, Psychology and Law First published on: 04 March 2011 (iFirst). Bond C, Jeffries, S and Loban H (with Cerruto M) (2011a) Exploring Indigenous sentencing disparities in Queensland, report for the Indigenous Criminal Justice Research Agenda Department of the Premier and Cabinet, State of Queensland. Brisbane: Queensland Government. In press. Bond C, Jeffries S and Weatherburn D (2011b) How much time? Indigenous status and the length of imprisonment decision in New South Wales. Australian and New Zealand Journal of Criminology. In press. Curran D A (1983) Judicial discretion and defendants sex. Criminology 21(1): 41-58. Daly K (1994) Gender, crime, and punishment. New Haven: Yale University Press. Daly K and Bordt R L (1995) Gender effect and sentencing: An analysis of the statistical literature. Justice Quarterly 12(1): 142-175. Freiburger T L and Hilinski C M (2010) The impact of race, gender, and age on the pretrial decision. Criminal Justice Review 35(3): 318-334. Jeffries S (2002a) Does gender really matter? Criminal court decision making in New Zealand. New Zealand Sociology 17(1): 135-149. Jeffries S (2002b) Just or unjust? Problematising the gendered nature of criminal justice. Womens Studies Journal 18(1): 24-41.

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Jeffries S and Bond C (2009) Does indigeneity matter?: Sentencing Indigenous offenders in South Australias higher courts. Australian and New Zealand Journal of Criminology, 42(1): 47-71. Rattner A (1996) The effect of legal and extra legal variables on sentencing in Israel. Justice Quarterly 13(1): 129-151. Snowball L and Weatherburn D (2006) Indigenous over-representation in prison: The role of offender characteristics. Contemporary Issues in Crime and Justice, 99. Sydney: New South Wales Bureau of Crime Statistics and Research. Snowball L and Weatherburn D (2007) Does racial bias in sentencing contribute to Indigenous overrepresentation in prison? Australian and New Journal of Criminology, 40(3): 272-290. Steffensmeier D, Kramer J and Streifel C (1993) Gender and imprisonment decisions. Criminology 31: 411-446. Steffensmeier D, Ulmer J and Kramer J (1998) The interaction of race, gender, and age in criminal sentencing: The punishment cost of being young, Black, and male. Criminology 36: 763-797. Wu J and Spohn C (2009) Does age have an effect sentencing length? A meta-analytic review. Criminal Justice Policy Review 20(4): 379-413.

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Eco-Justice and Environmental Crime

Human Rights and Environmental Wrongs: Achieving Environmental Justice through Human Rights Law

Bridget Lewis Law Faculty, Queensland University of Technology, Australia

Conference sub-theme: Eco-Justice and Environmental Crime

Abstract The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals and communities enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice

implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement

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mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

Keywords: human rights, environmental justice, environmental equity, inter-generational equity, international law

Introduction Environmental justice is concerned with the fair and equal distribution of environmental burdens and benefits at the local, national and international levels. It also strives to include in decision-making processes those who are most likely to be affected by environmental change. Environmental injustice can therefore be identified wherever there is inequality, unfairness or exclusion in an environmental context. This extends to potential injustices between developed and developing states, and between present and future generations. Instances of

environmental injustice are often accompanied by, or constituted by, human rights violations. This paper investigates the role of human rights principles in analysing these instances of environmental injustice, and argues that the framework of human rights law provides a normative approach to environmental governance which can help minimise injustice and promote the interests of those groups who are most adversely affected by environmental change. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

The Place of the Environment in the Human Rights Legal Framework In his separate opinion in the Gabcikovo-Nagymaros case before the International Court of Justice, Judge Weeramantry stated that:

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the protection of the environment...is a vital part of contemporary human rights doctrine, for it is sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration on Human Rights and in other human rights instruments (1991: 207).

At international human rights law it is a well accepted principle that a healthy environment is a necessary precondition for the promotion of several recognised rights (Sachs 2003: 26). The environmental dimensions of existing human rights can be described as either direct or indirect: direct in the sense that a poor environment will directly limit an individuals or a communitys ability to enjoy a specific right that is guaranteed to them, or indirect in the sense that a poor environment will affect an individuals or a communitys capacity to realise their human rights generally, or impede a governments ability to protect the rights of its citizens. In this sense environmental protection can be constructed as a prerequisite for the full enjoyment of human rights. The corollary of this approach is that environmental

degradation can amount to a violation of human rights under international law. This section will outline some of the rights which are guaranteed under international human rights law and highlight the necessary role that the environment plays in ensuring these rights are fulfilled and protected. Part four of this paper will consider in more detail the practical possibilities for using human rights enforcement mechanisms to promote environmental justice.

The Right to Health Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) guarantees to all people the right to the highest attainable standard of health. This

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right is also articulated in the Convention on the Rights of the Child (1989), the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and the International Convention on the Elimination of All Forms of Racial Discrimination (1965).

In its General Comment 14, the United Nations Committee on Economic, Social and Cultural Rights elaborates on the scope and content of Article 12 of the ICESCR. It makes clear that the wording of the right to health in Article 12 is intended to include a wide range of socioeconomic factors and underlying determinants of health, including food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment as well as the prevention and reduction of the populations exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health (2000). General Comment 14 clearly indicates that the environment is considered a

significant contributing factor to achieving an adequate standard of health, and environmental problems such as pollution are constructed as barriers to full enjoyment of the right.

The Right to an Adequate Standard of Living Article 11 of the ICESCR guarantees to all individuals the right to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living standards. This right is also guaranteed to children under article 27 of the Convention on the Rights of the Child. The right to an adequate standard of living is considered to imply the right to water (Committee on Economic, Social and Cultural Rights 2002) as well as the right to food (Committee on Economic, Social and Cultural Rights 1999). Where

environmental degradation such as pollution, deforestation or desertification affects the

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availability of clean and secure water supplies, or limits a communitys ability to provide adequate food and nourishment, then the right to an adequate standard of living is violated.

Indigenous Rights Human rights can also be adversely affected by environmental harm where the environment plays a particular role in the traditional cultural or spiritual lives of certain groups. Indigenous peoples in particular may experience violations of their rights where the natural environment around them is disturbed. A range of human rights are accorded to indigenous peoples. Article 27 of the International Covenant on Civil and Political Rights (ICCPR) (1966) states:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

The International Labour Organisations Convention 169 includes measures to protect the environment of indigenous territories, as well as traditional activities such as hunting, fishing, trapping and gathering (1989). Indigenous peoples may also be entitled to self-determination, a right which is located in common article 1 of the ICCPR and the ICESCR. Under common article 1, all peoples have the right to dispose of their natural resources and must be protected against deprivation of the means of subsistence. The components of self-determination can be considered to be under threat from environmental harm.

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The various possible forms of environmental harm, such as pollution, deforestation, exploitation of natural resources or climate change, have the potential to impact on a wide range of human rights. The international human rights framework recognises that the

environment is a significant factor contributing to a States ability to protect and fulfil its citizens human rights, and in some circumstances environmental harm has been held to amount to a violation of human rights guaranteed by law. This paper argues that human rights principles can be used as a normative framework to assist with decision-making and policy formulation and that doing so can help achieve just outcomes. The following section considers the nature of environmental justice in order to demonstrate the sorts of problems which a human rights approach can help address.

The Concept of Environmental Justice The term environmental justice can be defined using a range of theoretical approaches, and encompasses a wide range of justice considerations. One formulation of environmental justice can be drawn from the emerging fields of eco-crime and green criminology, which provide an understanding of environmental justice based on conventional criminological discourses as they apply to environmental harm (see Walters 2010; White 2008). Another account of environmental justice is based on the theory of distributive justice, whereby just outcomes are assessed according to the equality and fairness with which environmental benefits and burdens are distributed between individuals, communities and States (Bosselman and Richardson 1999). This paper uses the distributive justice model, and argues that where environmental injustice is identified it is often accompanied, or constituted, by human rights violations.

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In 1989 Edith Brown Weiss wrote what might be considered to be a rather farsighted paper on climate change and equity. She argued that climate change represented an issue for environmental justice in terms of its unequal effects for certain communities, countries or generations. She drew on John Rawls theory of justice (1979) to identify the problem of achieving distributive justice between members of the same generation in relation to the effects of climate change. In doing so she highlighted one of the key injustices of climate change: that people in developing states are likely to be worse affected because of their vulnerability to environmental change and their lower capacity to adapt to it (2008: 618). Although this problem is particularly well-illustrated by the problem of climate change, the same kind of injustice can be found in relation to many forms of environmental degradation. It is often the case that environmental harm such as pollution or deforestation affects poorer communities more seriously, be it because of their reliance on the environment for subsistence and their consequent vulnerability to environmental harm, or their economic incapacity to cope with such harm successfully, or a combination of these factors. Climate change entails an additional facet of environmental injustice, in that many of the people who will suffer worst, and in all likelihood first, from the effects of climate change are among the least responsible for its causes.

Climate change also illustrates another level of environmental injustice: injustice between present and future generations. Because of the extensive time frame over which the results of global warming are played out, there is a disparity between past and current generations who have been responsible for greenhouse gas emissions, and future generations who will have to live with the consequences (Chandani 2007). Brown Weiss identifies inequities in terms of the quality of the natural environment which future generations would inherit, as well as their access to natural and cultural resources. Her theory of inter-generational equity incorporated

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three elements: conservation of options, conservation of quality and conservation of access. In discussing the challenge of climate change, she argued that our strategies must address these three issues, and we must strive to leave the Earth in no worse condition than we received (2008: 623).

Environmental justice can therefore be interpreted as operating on two planes: intra- and inter-generational justice. These two layers of justice do not operate independently however. As Brown Weiss pointed out, in the present generation, one cannot expect people to fulfil obligations to future generations if they are not able to satisfy their basic needs (2008: 216). She argued that a failure to address the needs of communities today would exacerbate the inequalities facing future generations. This presents one of the key ways in which human rights principles can help address environmental injustice: by working towards the protection and fulfilment of human rights for all people, and particularly for developing states, we can build capacity in these communities so they can more meaningfully engage with sustainable development practices, and focus their attention on the environmental legacy that they will leave for future generations. The following section will expand upon this notion of how a rights-based approach can help achieve environmental justice.

A Human Rights Approach to Achieving Environmental Justice There are a range of ways in which a human rights approach to environmental problems can help achieve just outcomes. As outlined above, a human rights approach which works towards capacity-building in developing states can help establish the conditions necessary to encourage sustainable development and thereby improve the likelihood of inter-generational equity. Inter-generational equity is also bolstered by a rights-based approach because a broad understanding of human rights requires not only that we protect the rights of present

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generations, but also that we ensure that our actions today will not jeopardise the chances of future generations of enjoying those same rights.

In terms of intra-generational equity, human rights principles also have a valuable role to play. The capacity-building which Brown Weiss identified as a precondition to inter-

generational equity also has positive consequence for environmental justice among members of the same generation. This can occur in a number of ways. Environmental problems may arise where impoverished communities or developing states strive to achieve economic development by any means available. By working towards full enjoyment of rights such as the right to adequate living standards, the right to education and the right to the highest attainable standard of health, these communities and their governments are under less pressure to pursue economic development at the expense of the environment, but are instead better able to take more environmentally compatible and sustainable measures. Capacitybuilding also helps reduce communities vulnerability to environmental exploitation by external parties, governmental or corporate. Further, when environmental problems do occur, such as those caused by climate change, communities possess greater resilience and capacity to adapt. This helps to mediate against the inequitable impact which climate change would have on developing states or otherwise vulnerable communities.

As well as promoting capacity-building in otherwise vulnerable communities, human rights principles can provide a normative framework to assist in more just decision-making in environmental governance. Where projects are proposed which would cause environmental changes, a rights-based approach would assess the human as well as the environmental impacts of such work. A rights-based approach also incorporates the concepts of nondiscrimination and equity that are central to sustainable development, and which can help to

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ensure just outcomes for individuals and communities likely to be affected by environmental change (Atapattu 2008: 36).

In a practical sense the international human rights legal framework also offers a mechanism for achieving environmentally just outcomes. Human rights laws impose obligations on states to take steps to respect, protect and fulfil human rights. While the exact standard of obligation may vary depending on the particular right concerned and according to a states capabilities, at the very least states must refrain from activities which violate human rights. Where states fail to meet their obligations, criticism from the international community is given weight by international law. More significant in a practical sense may be the

availability of human rights tribunals, courts and committees, which could be utilised by individuals and communities who allege their human rights have been violated (Posner 2007: 3). For example, an individual may bring a complaint to the Human Rights Committee where there is an alleged violation of a right contained in the ICCPR (First Optional Protocol to the ICCPR 1976: art 1).

Regional enforcement mechanisms may also provide an avenue for redressing environmental injustice. Several cases have already been successful before regional human rights tribunals, establishing that environmental degradation such as pollution or deforestation can amount to a violation of human rights. For example, in Lopez-Ostra vs Spain (1994) the European Court of Human Rights held that pollution caused by a waste treatment facility located near the complainants home violated their right to privacy and family life (guaranteed under article 8 of the European Convention on Human Rights (1950)) by limiting their ability to enjoy their home. This was found to be the case even though the court did not find a violation of the right to health in the circumstances. In the Awas Tingni case before the Inter-

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American Court of Human Rights (2001) the Mayagna Awas (Sumo) Tingni community of Nicaragua argued that the Nicaraguan government had failed to protect their property rights over traditional lands and natural resources, which were to be commercially developed. The Court upheld the claim and agreed that the Communitys property rights under the American Convention of Human Rights (1969) had been violated by the States failure to provide an adequate system of indigenous title and protection of indigenous lands. These judicial

avenues provide one option for communities or individuals unjustly affected by environmental harm where such harm can be construed as a violation of human rights.

There are limitations to the ability of the human rights regime to address environmental injustices. Access to the regime relies on States being parties to the relevant instruments of international law, and in many cases individuals are unable to avail themselves of international or regional mechanisms until they have exhausted local legal options (Optional Protocol 1976: art 2). As well as these procedural limitations, any claim alleging a violation of human rights will face the causative challenge of proving that a particular states conduct (either directly or through its failure to properly regulate non-state actors) caused the breach of human rights. This is particularly a challenge for any claim relating to climate change, where the cumulative and transnational impact of greenhouse gas emissions and the complex scientific processes involved make it very difficult to hold a particular State responsible for a specific outcome (Stephens 2010). Nonetheless, there is normative force in the human rights regime, and the possibility of claims against States where they have failed to meet their human rights obligations may provide an important incentive for addressing environmental injustice.

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Conclusion Environmental injustice takes many forms, and can be identified in disproportionate impacts on poorer neighbourhoods, developing states and future generations. In many cases

environmental injustice can be described in terms of the human rights violations it represents, drawing on our evolving understanding of the interconnectedness of human rights and the environment. Beyond this descriptive function, the human rights framework also has a role to play in redressing and preventing environmental injustice. The utility of human rights in achieving environmental justice can be seen in three key areas. First, a rights-based approach to environmental governance can highlight more fully the human impact of environmental degradation, and provide a set of norms against which to evaluate potential environmental harm. Second, by ensuring that all individuals and communities enjoy the full complement of human rights we can build capacity for communities, particularly those in developing states, to focus more clearly on sustainable development strategies and just environmental outcomes. Finally, human rights enforcement mechanisms provide a valuable avenue for individuals and communities to seek redress for environmental injustice inflicted upon them. Together with other forms of environmental governance, human rights law provides a complementary and useful tool in achieving environmental justice for present and future generations.

References American Convention on Human Rights (Pact of San Jose, Costa Rica), opened for signature 22 November 1969 (entered into force 18 July 1978). Atapattu S (2008-2009) Global climate change: Can human rights (and human beings) survive this onslaught? Colorado Journal of International Environmental Law and Policy 20(1): 35-67.

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Bosselman K and Richardson B (2009) Environmental justice and market mechanisms: Key challenges for environmental law and policy.The Hague: Kluwer Law International. Brown Weiss E (2008) Climate change, intergenerational equity and international law. Vermont Journal of Environmental Law 9(3): 615-638. Chandani A (2007) Distributive J=justice and sustainability as a viable foundation for the future climate regime. Carbon and Climate Law Review (2): 152-163. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). Gabcikovo-Nagymaros Project (Hungary v Slovakia) Separate opinion of Vice-President Weeramantry, 37 ILM 168. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March, 1976). International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, opened for signature 17 June 1989, Conv 169 (1989) reprinted in 28 ILM 1382 (entered into force 5 September 1991) Lopez Ostra v Spain (1995) Eur Ct H R 38.

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Mayagna (Sumo) Awas Tingni Community v Nicaragua judgement of 31 August, 2001, InterAm Ct H R (Ser C) No 70. Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March, 1976). Posner E (2007) Climate change and international human rights litigation: A critical appraisal. Chicago Public Law and Legal Theory Working Paper 148. Rawls J (1971) A theory of justice. Cambridge: Harvard University Press. Sachs W (2003) Environment and human rights. Wuppertal Institute for Climate, Environment, and Energy, Paper No 137, September 2003. Stephens P (2010) Applying human rights norms to climate change: The elusive remedy. Colorado Journal of International Environmental Law and Policy 21(1):49-83. United Nations Committee on Economic, Social and Cultural Rights (1999) General comment 12: The right to adequate food. UN Doc No E/C.12/1999/5. United Nations Committee on Economic, Social and Cultural Rights (2000) General Comment 14: The Right to Health. UN Doc No E/C.12/2000/4. United Nations Committee on Economic, Social and Cultural Rights (2002) General comment 15: The right to water. UN Doc No E/C.12/2002/11. Walters R (2010) Toxic atmospheres: Air pollution, trade and the politics of regulation. Critical Criminology 18(4): 307-323. White R (2008) Crimes against nature: Environmental criminology and ecological justice. Collumpton: Willan Publishing.

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Sex, Gender and Justice

Understanding Woman Abuse in Canada: Past, Present, and Future

Walter S. DeKeseredy Faculty of Social Science and Humanities, University of Ontario Institute of Technology

Oshawa, Ontario, Canada L1H 7K4 Email: walter.dekeseredy@uoit.ca

Conference sub-theme: Sex, Gender and Justice

Abstract In the mid 1980s, woman abuse in Canada started receiving much social scientific attention. Since then, numerous studies have been conducted and several new theoretical perspectives were developed and tested. The main objective of this paper is to critically review the Canadian empirical and theoretical work on woman abuse done so far and to suggest new directions in sociological research and theorizing. Special attention will also be given to the ways in which broader political economic forces have helped shape and constrain scholarly work on a variety of highly injurious male-to-female assaults that occur in private settings. For example, due to the Canadian federal government's anti-feminist stance and to the influence or right-wing fathers' rights groups, Statistics Canada no longer conducts surveys that focus primarily on violence against women and instead produces sexually symmetrical findings (equal rates of male and female violence) generated by a modified version of the highly controversial Conflict Tactics Scale.

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Introduction Canada is often defined as a "low-violence" or "very safe" country (Currie, 2009). There is much empirical support for this characterization; however, some people and places in Canada are safer than are others. For example, while most men are immune from physical and sexual assaults in domestic/household settings, these contexts are extremely dangerous for an alarming number of women. Annually, at least 11% of married/cohabiting women are physically abused by their male partners. Additionally, ample evidence suggests that Canadian men are more physically violent to adult female intimates than are males in the U.S. (DeKeseredy, 2011a). Further, approximately 25% of women enrolled at post-secondary schools experience some variation of sexual assault (DeKeseredy & Flack, 2007). Many more statistics support the assertion that "It often hurts to be a woman in Canada" (DeKeseredy, 2011a), but it is beyond the scope of this paper to present them. Instead, the main objective is to review Canadian empirical and theoretical work on woman abuse done so far and to suggest new directions in sociological research and theorising.

The Past There was episodic concern with woman abuse in Canadian history, but it was not of major interest until recently to social scientists, practitioners, politicians, and the general public. It was, after all, only 40 years ago that an exhaustive bibliography on wife beating could be written on an index card (DeKeseredy & Dragiewicz, 2009). As Denham and Gillespie (1999) remind us, "Prior to the 1970s, there was no name for violence against women by their husbands or partners" (p. 6). Since then, mainly because of feminist efforts, many Canadians pay considerable attention to the various assaults women experience during and after intimate relationships. Feminists also influenced the development of a spate of large- and small-scale studies, as well as the construction of several theories.

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Research specifically designed to determine the extent of woman abuse in Canada began with MacLeod and Cadieux's (1980) examination of transition house and divorce-petition data. Their study was "methodologically unsound" (Ellis, 1987), but they concluded, "every year, one in ten Canadian women who are married or in a relationship with a live-in lover are battered" (p. 17). While not derived from a representative sample of the general population, this conclusion was not far off the mark as demonstrated by subsequent more sophisticated studies.

In the mid-1980s to early 1990s, several Canadian researchers gathered more reliable quantitative data on woman abuse in intimate relationships.100 Although these scholars used different sampling and interview techniques, almost all of them used some version of Straus' (1979) Conflict Tactics Scale to glean data on physical violence and Koss, Gidycz, and Wisniewski's (1987) Sexual Experiences Survey to capture statistics on sexual assault. Except for Statistics Canada's VAWS (Johnson, 1996), most Canadian surveys showed that at least 11% of women in marital/cohabiting relationships are physically abused by their partners each year. The rate of such violence in university/college dating was found to be twice as high and so was the incidence of sexual assault (DeKeseredy & Schwartz, 1998).

During the aforementioned time period, there were also studies of "post-separation woman abuse" and "intimate femicide,"101 which supported "the widespread apprehension that wives often experience elevated risk when deserting a violently proprietary husband" (Wilson,

100

See DeKeseredy (2011) and DeKeseredy and MacLeod (1997), and Johnson and Dawson (2011) for reviews of these studies. 101 See Brownridge (2009), DeKeseredy, Rogness, and Schwartz (2004), and DeKeseredy and Schwartz (2009) for reviews of research on these harms.

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Johnson, & Daly, 1995: 340-341). This observation still holds true in Canada (Brownridge, 2009; DeKeseredy 2011a).

From 1980 until now, most woman abuse surveys were primarily concerned with answering two questions: (1) "how many women are abused by their current or former male partners?" and (2) "what are the correlates of woman abuse" (DeKeseredy & Hinch, 1991: 28)? This is not to say that all of this work constituted "abstracted empiricism" (Mills, 1959). For example, using data from his Toronto woman abuse survey, Smith (1990) tested the feminist hypothesis that wife beating results from men's adherence to the ideology of familial patriarchy. Further, Statistics Canada's VAWS was influenced by feminist thought (Johnson, 1996). Still, few original theories were crafted and tested by Canadian scholars.

Much of the Canadian theoretical work on woman abuse is guided by DeKeseredy's (1988) male peer support model, which was revised and expanded over the past 25 years.102 The late 1980s also witnessed the development of Ellis and DeKeseredy's (1989) dependency, availability, deterrence (DAD) model, a perspective that attempts to explain why separated/divorced and cohabiting women are more likely than married women to be abused by the men they live with or have lived with. As well, variations of feminist theory influence Canadian woman abuse research and still do today. Another perspective that garnered much attention in the late 1980s was evolutionary psychology. Canadian scholars working in this tradition (e.g., Daly & Wilson, 1988) argue that male violence against women is the result of competition for sexual access to women. The concept of male proprietariness is emphasized in evolutionary thought and is defined as "the tendency [men] to think of women as sexual and reproductive 'property' they can own and exchange' (Wilson & Daly, 1992: 85).

102

See DeKeseredy (1990), DeKeseredy and Schwartz (1998, 2002, 2009, 2010) and Schwartz and DeKeseredy (1997) for in-depth reviews of the empirical and theoretical literature on the relationship between male peer support and woman abuse in various intimate heterosexual relationships.

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Ellis and DeKeseredy (1997) built on the concept of male proprietariness by integrating it with a theory of interventions to explain variations between estrangement and intimate femicide. Male proprietariness is also a major component of DeKeseredy, Rogness, and Schwartz's (2004) feminist/male peer support model of separation/divorce sexual assault. Their offering moves well beyond answering the problematic question, "Why doesn't she leave?" to "What happens when she leaves or tries to leave?" and "Why do men do it?" (DeKeseredy & Schwartz, 2009; Hardesty, 2002: 599). The first question blames females for the abuse they endure in intimate relationships. And, as Stark (2007) notes, "It is men who stay, not their partners." Certainly, "there is no greater challenge in the abuse field than getting [violent] men to exit from abusive relationships" (p. 130).

In sum, in approximately one decade, woman abuse emerged out of a vacuum of silence to become a major issue for Canadian researchers, but it is no longer a priority for most politicians and the general public. Moreover, the progressive empirical and theoretical work done since the mid-1980s unintentionally contributed to an anti-feminist backlash (DeKeseredy & Schwartz, 2003). Patriarchy is now being reasserted by conservative fathers' rights groups and other anti-feminist organizations (Dragiewicz, 2008), and the Canadian federal government is supportive of these groups' initiatives.

Where We Are Today The late 1990s marked the start of a major shift in Canadian federal government responses to woman abuse, which, in turn, had a major impact on the research community. Statistics Canada is now influenced by political forces driven by fathers' rights groups and others intent on minimizing the pain and suffering caused by male-to-female violence. Statistics Canada

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(2002, 2005, 2011) no longer focuses primarily on violence against women, but rather conducts General Social Surveys (GSS) that produce equal rates of male and female intimate violence without carefully examining their differing contexts, meanings, and motives (DeKeseredy, 2011a). As well, on October 3, 2006, Bev Oda, then federal minister for the Status of Women Canada (SWC), announced that women's organizations are no longer be eligible for funding for advocacy, government lobbying, or research projects. SWC was also required to remove the word equality from its list of goals (Carastathis, 2006).

In early September 2007, Prime Minister Stephen Harper buttressed the anti-feminist agenda by eliminating funding to the National Association of Women and the Law, a non-profit women's group that tackles violence against women and other forms of female victimization. Consequently, there will be more cases where women are "twice victimized": first by violence and the men who abuse them, and then by the lack of social support provided by the Canadian federal government (DeKeseredy, 2009).

On top of these transitions, some prominent Canadian politicians, journalists, activists, and researchers dismiss the alarming rates of woman abuse generated by progressive surveys and ferociously attack feminist interpretations of these figures. For example, well-known for his anti-feminist stance, psychologist Donald Dutton (2010) states that only a "minority of men are violent either outside or within relationships. There is no norm for wife assault - this is a sociological fiction and contradicted by surveys...." (p. 8).

The Public Health Agency of Canada used to prioritize violence against women, but now publishes Family Violence Prevention E-Bulletins, such as its July 2011 version,103 that

103

See http://www.phac-aspc.gc.ca/ncfv-cnivf/EB/2011/july-juillet/e-bulletin-eng.php (accessed July 11, 2011).

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support the erroneous notion that women and girls are equally violent as males and that female rates of violence are increasing. What is more, gender-neutral terms such as "intimate partner violence," and "domestic violence" are replacing gender-specific ones (e.g., woman abuse). Many people who use such language selectively cite research that incorrectly characterizes violence as bi-directional, mutual, or sex symmetrical (DeKeseredy & Dragiewicz, 2009).

In the current political atmosphere characterized by a counter-movement to degender the naming and framing of woman abuse (Bumiller, 2008; Johnson & Dawson, 2011), feminist inquiry is subject to vitriolic attacks, but most, if not all, who launch them (e.g., Dutton, 2006, 2011) do not understand feminism. And, it is their voice - not those of feminists or abused women - that is the loudest. Ironically, this situation has a positive consequence for the social scientific community since feminists' studies are generally very rigorous because they know that they will be subjected to heightened scrutiny and criticism for being "political" rather than scientific (Romito, 2008). Though often criticised, ignored, or even silenced, Canadian feminist academic work on woman abuse persists. Still, much of the recent research was done outside Canada. For example, University of Ottawa criminologist Holly Johnson helped conduct the International Violence Against Women Survey (Johnson, Ollus, Nevala, 2008), and I continue to do research with U.S. colleagues on separation/divorce assault in urban and rural parts of their country (see DeKeseredy & Schwartz, 2009; Rennsion, DeKeseredy, & Dragiewicz, in press). It is also somewhat paradoxical that Molly Dragiewicz, a leading expert on Canadian fathers' rights groups, the anti-feminist backlash, and the experiences of abused Canadian

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women lacking legal representation in the family courts, recently came from the U.S. to work in Canada.104

Again, Statistics Canada's recent renditions of the GSS are highly problematic. Brownridge (2009), however, examined only the woman abuse statistics in the 1999 and 2004 GSS and produced some valuable information on violence against women at the margins, such as those who are immigrants, disabled, and who are Aboriginal. Unfortunately, his analyses of GSS data receives much less public attention than GSS data showing sex symmetry.

Intersectional analyses of violence in the lives of girls is another issue that garners much attention in the Canadian feminist community (Berman & Jiwani, 2002; Jiwani, 2006; Pajot, 2009), and so are moral panics about girls' aggression (Barron & Lacombe, 2010; DeKeseredy, 2010). Intersectionality is also directly relevant to feminist interpretations of Internet pornography, which has become more violent and racist (Dines, 2010). DeKeseredy and Olsson (2011) show that it is also strongly associated with various types of woman abuse in intimate heterosexual relationships.

Other salient examples of recent Canadian feminist scholarship could be reviewed here, including Du Mont et al.'s (2009) research on drug-facilitated sexual assault. Undoubtedly, there are prolific feminist researchers scattered across Canada and they continue to do interesting and policy-relevant empirical and theoretical work. Nonetheless, they face numerous challenges over the next few years as Canada continues to move to the right of the political economic spectrum. It is to some of them that I turn to next.

104

For more information on her recent Canadian work on these issues, see DeKeseredy and Dragiewicz (2007, 2009) and Dragiewicz and DeKeseredy (2008, in press).

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Challenges Ahead At the end of the 1990s, Denham and Gillespie (1999) declared, "this is a critical point in the evolution of our understanding of woman abuse" (p. 47). This statement holds true today, but the circumstances are different. There was an anti-feminist backlash then, but it more deeply entrenched and mainstreamed (DeKeseredy, 2011a; Dragiewicz, 2011). For example, Springer Publishing Company now produces the journal Partner Abuse and people seeking to gain a sophisticated understanding of current feminist contributions will learn little from reading it. As stated in the Guidelines for Authors, "A basic premise of the journal is that partner abuse is a human problem, and that the particular role of gender in the etiology, perpetration, and consequences of emotional and physical partner abuse cannot be assumed...." Gender, however, "matters" and major steps need to be taken to resist the degendering of one of Canada's most compelling social problems (Dragiewicz, 2009).

Gender matters is a message that repeatedly needs to reach the general public and one effective way of doing so is through social media such as Facebook (DeKeseredy, 2011b). Researchers should also target mainstream media and engage in "newsmaking criminology" (Barak, 2007) Since newspapers, television shows, web sites, and magazines reach large audiences, newsmaking criminologists assert that progressive scholars should take every opportunity to offer their research and views to the media, creating a situation where they are "seen and heard, not after the fact, but proactively" (Renzetti, 1999: 1236). That articles and letters written by feminists are periodically published by the mainstream press and that some feminist scholars have been on television serves as evidence that the mainstream media do not totally dismiss or ignore progressive interpretations of gender violence (CaringellaMacDonald & Humphries, 1998; DeKeseredy, 2011b).

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Canadian funding for woman abuse research is at an all time low and this situation will not improve under Prime Minister Stephen Harper's leadership. The only major national surveys likely to be administered during his tenure will be those crafted by Statistics Canada and the data will continually support the sexual symmetry of violence thesis. Feminist projects, though, funded by local community groups and provincial government agencies can be done. For example, since 2008, Molly Dragiewicz and I conducted local studies of abused women's experiences with the family court process funded by Ontario provincial grant money given to Luke's Place Support and Resource Centre based in Oshawa, Ontario.105

There will be even more intense competition for scarce grant money as governments at all levels downsize their budgets. It is thus time for researchers based at different institutions to think seriously about collaborating instead of competing with each other. Collaborations help "spread the wealth," but also, "work to expand the collective understanding of woman abuse. They can create new opportunities for solutions that could not exist if groups worked in isolation" (Denham & Gillespie, 1999: 45).

Theoretical work is just as, if not more, important as empirical projects, and there is a need for new perspectives. Yet, the best efforts to explain woman abuse focus on men rather than women. Hotaling and Sugarman (1986), found only one variable out of 42 characteristics allegedly related to wife-victims that consistently discriminated between abused women and those who were not abused. This is still the case now, and it is consistent with the argument that any woman is a possible object of violence. What differs in not the woman, but the man (DeKeseredy, 2011a).

105

See DeKeseredy, Dragiewicz, and Demers (2011) and Dragiewicz and DeKeseredy (2008) for more information on this work.

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Equally important is constructing and testing theories that focus on "the big picture" as well as micro-level determinants (Rosenfeld, 2011). In other words, broader social, political, cultural, and economic contexts in which woman abuse occurs need to be examined because this harm does not occur in a vacuum and is a widespread problem. Such work, however, will be met with acerbic criticism from conservative researchers and activists seeking to minimize the breadth of woman abuse and reduce it to a function of mental disorders (e.g., Dutton, 2006, 2010, 2011).

Conclusions This paper offers a brief history of Canadian empirical and theoretical work on woman abuse. An unknown number of readers will disagree with this historical account and assert that important contributions were neglected. As Michalowski (1996) states in his story of critical criminology, "This is all to the good. I increasingly suspect that we can best arrive at useful truth by telling and hearing multiple versions of the same story" (p. 9). Included in another version will be contributions made by psychologists, anthropologists, social workers, and other types of scholars. Obviously, the bulk of material cited here is sociological. This is not the result of selective inattention or paradigm hostility. Rather, sociologists did most of the Canadian theoretical and empirical work on woman abuse.

Woman abuse as a social issue compels us all to become sociologists and to look at our whole society through the lens of a critical analyst. The challenge for us as sociologists is to continue to question the meaning of changes in the story of woman abuse and their unanticipated consequences to uncover the real meaning of change and the social meaning of woman abuse prevention (DeKeseredy & MacLeod, 1997).

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There is yet another story about woman abuse in Canada that needs to be told, one that focuses on the different approaches to preventing and ending beatings, sexual assaults, stalking, and the like. Despite budget cuts, the anti-feminist backlash, and a host of other obstacles, many achievements are attributed to the ongoing and ever changing efforts of men and women involved in the violence against women movement (Johnson & Dawson, 2011). But have the rates of woman abuse decreased over the past 40 years? Abused women now have more resources to choose from, but they are not markedly safer (Dragiewicz & DeKeseredy, 2008). Without doubt, separated/divorced women in Canada are still at high risk of being killed (Cross, 2007; DeKeseredy, 2011a). Sadly, scores of women will continue to suffer in silence until the major causes of woman abuse are recognized, understood, and addressed by policy makers and the general public (Johnson & Dawson, 2011; Wolfe & Jaffe, 2001).

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Tactics of Antifeminist Backlash Against the U.S. Battered Womens Movement

Dr. Molly Dragiewicz Assistant Professor of Criminology Faculty of Social Science and Humanities, University of Ontario Institute of Technology Email: Molly.dragiewicz@uoit.ca

Conference sub-theme: Sex, Gender and Justice

Abstract Opposition to mens violence against women who are their intimate partners has become politically popular in the United States. The Violence Against Women Act (VAWA) has enjoyed broad-based support for over 15 years. VAWA has been refined and expanded with each reauthorization. Resistance to the battered womens movement is often overlooked in this political context. However, woman abuse and state responses to it are mired in cultural tensions about crime, law, gender, economics, scholarship, and the family. Based on interviews with 35 advocates in the United States, this paper outlines key tactics of antifeminist backlash against the battered womens movement.

Introduction In 1976, Del Martin published Battered Wives, the first book devoted to the subject of battered women in the United States. Martin observed that, The news media have often treated wife-abuse as a bizarre and relatively rare phenomenon- as occasional fodder for sensationalistic reporting- but rarely as a social issue worthy of thorough investigation (1981: 15). While many of the underlying cultural issues Martin described in 1976 are still

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relevant, there has been a sea change in hegemonic discourses on mens violence against women. Opposition to mens violence against female intimate partners has become politically popular in the United States. One of the most visible symbols of this marked social change is the Violence Against Women Act (VAWA). VAWA is a federal law which has enjoyed broad-based support since its passage in 1994. VAWA has been refined and expanded with each subsequent reauthorisation. The United States Department of Justice website describes VAWA this way,

In 1994, the U.S. Congress enacted the Violence Against Women Act (VAWA), a comprehensive legislative package focused on violence against women. VAWA recognised the devastating consequences that violence has on women, families, and society as a whole. VAWA also acknowledged that violence against women requires specialised responses to address unique barriers that prevent victims from seeking assistance from the justice system (U.S. Department of Justice, n.d.).

This excerpt highlights the now-dominant conceptualisation of violence against women as an important and gendered social problem requiring collective action.

Resistance to the battered womens movement is often overlooked in the contemporary political context that produced and sustains VAWA. However, violence against women and state responses to it continue to be mired in cultural tensions about crime, law, gender, economics, knowledge, and the family. Based on interviews with anti-violence advocates in the United States, this paper outlines key tactics of antifeminist backlash against the battered womens movement.

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Backlash Popularized by Susan Faludi (1991), the term backlash refers to efforts to contain, undermine, and reverse the gains made by women under feminism (Dragiewicz, 2008). Campaigns to transform mens violence against women from a private shame to a public political issue have been among the most popular and widely embraced projects of feminism. As is the case with other progressive social movements, the battered womens movements successes were accompanied by criticism, cooptation, and silencing (Collins, 2004: 3). Ultimately, while feminism has succeeded in substantially altering discourse and law on violence against women, many of the beliefs and practices conducive to this form of violence persist.

As feminist scholars and activists have noted, efforts to harness state power to address violence against women are ripe for unintended consequences (Chesney-Lind, 2006; DeKeseredy, 1999; DeKeseredy & Schwartz, 2005; Faludi, 1991; INCITE!, 2003; Minaker & Snider, 2006). Feminists wary of neoliberal appeals to formal equality have documented the ways in which gender-blind approaches to crime and violence have not only failed to ameliorate gender inequality but, in some cases, exacerbated it. Justice system responses to violence against women and race and gender-blind criminal justice policies have both been associated with disproportionate unintended negative consequences for women, especially women of color (Chesney-Lind, 2006; INCITE!, 2003; Schlesinger, 2008). In the case of violence against women, resistance to state campaigns is convoluted as opponents of feminism seek to couch their objections to anti-violence efforts in ways that sidestep normative anti-violence positions. Attacks on feminism, both veiled and overt, are an important part of the backlash against the battered womens movement.

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Methodology The findings discussed in this paper are drawn from semi-structured interviews on support for and resistance to anti-violence work since the inception of the battered womens movement. The exploratory study utilised a convenience sample, with invitations to participate extended online via professional listervs for anti-violence advocates, scholars, and lawyers. Study participants were recruited and interviewed until responses reached thematic saturation. The sample consisted of 35 interviews which were conducted and transcribed between 2007 and 2009. Interviews ranged from fifty-two minutes to over two and a half hours, with an average of approximately an hour and a half. Transcribed interviews were coded using MAXQDA, a qualitative software analysis package.

The Sample The average age of respondents for this study was 59, and the age range was from 30-67. Thirty one of the respondents were Caucasian, and four identified as mixed race, including a mix of Caucasian, Asian, Native American heritages. Thirteen respondents had a JD, fifteen had Masters degrees, five had PhDs, two had some college, and one had a college degree and some graduate classes. Respondents were from twenty different states. For respondents who reported salaries, the annual average was $49,000. Two respondents reported being retired and working on a volunteer basis. A few respondents noted that their income fluctuates from year to year due to consulting work. Thirty of the respondents were female and five were male. Seven respondents identified as lesbian or queer, and 28 identified as straight or heterosexual. Respondents averaged twenty-two years in the field, ranging from nine years to more than forty years. The sample included clinical law professors, practicing attorneys, battered womens shelter staff, state coalition staff, national advocacy organisations, university antiviolence program staff, child counsellors or therapists, and

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independent advocates. Most of the respondents had had more than one job working on antiviolence projects prior to their current position.

Findings While the larger study looked at a range of issues related to support for and resistance to battered womens movement work, this paper is focused on the tactics of antifeminist backlash against the battered womens movement. In what follows, I review several key tactics identified by the study participants. This review provides a general description of backlash tactics rather than a comprehensive list, and many specific tactics have been subsumed under the named categories. To protect the identities of the respondents, which is especially important given the nature of their work with violent men, I have not provided identifying information about the sources of individual quotations and have redacted location and organisation specific information where necessary.

In response to a question about whether respondents experience resistance to their antiviolence work, the most common response was absolutely. While all respondents indicated experiencing or observing some forms of resistance to their work, the nature, level and impact of resistance varied widely according to respondents specific professional locations. Six primary tactics emerged in descriptions of resistance to anti-violence work:

resistance to acting on legal and policy changes; victim blaming; discrediting women/feminists; individualisation; changing the subject;
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direct attacks and threats.

Resistance to Acting on Legal and Policy Changes Respondents named Lack of implementation of the law, which comes from a variety of places: ignorance, lack of training, and just plain old fashioned misogyny as a key form of resistance. This type of resistance was characterised as a way of pushing back against legal and policy changes imposed by authority figures. Respondents repeatedly described the failure to implement new policies in meaningful ways as manifestations of resistance to antiviolence efforts. For example,

We also have a lot of people that dont do what they should do in the criminal justice system. .... Our problem is implementation of the law. A lot of cops dont arrest, or the cops will do dual arrest, or they wont do any arrest, or they arrest the wrong person. Judges or states attorneys wont prosecute or theyll plea down to just simple battery. Judges wont do what theyre supposed to do. In some communities perpetrators come before the criminal justice system repeatedly. They go to batterers intervention programs, they stop going to the batterers intervention programs, and those programs are designed to, basically its court supervision, and when they stop, when the perpetrators stop going to the batterers intervention program probation should turn them in to the court and they should go to jail. But the probation office lets the ball drop and doesnt turn them in. And so they know that they can get away with it, and so the perpetrators know that they can get away with abuse because someone turns a blind eye to them and there are very few counties where all the systems and all the players from criminal justice do what they are supposed to do.

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This quotation describes a range of ways that local authorities fail to implement the laws that are in place in the state.

Many respondents described the implementation of positive policy changes in ways that punish survivors of violence, such as responding to pro-arrest polices with dual arrests or arresting the victim of violence rather than the perpetrator. For example,

I find it really challenging when the criminal justice system doesnt follow through and do what they should be doing. I find it challenging when states attorneys want to arrest victims for violating their own orders of protection because if youre a petitioner of an order of protection, you cant violate it. But we have had some states attorneys who have actually arrested victims.

Another example of this is officers responding to pro-arrest policies by refusing to investigate the situation, as in this example:

We get dual arrests or we have law enforcement officers who dont necessarily understand the dynamics. Or theyre left with finding a guy whos been who has some kind of injury and the woman doesnt so they dont look at, is this injury primary aggression? Or is this a defense injury, like the injuries that happen to mens faces or hands but men are strangling women, and they scratch the hands trying to get the hands off the throat? Yeah, theres been scratching, theres been damage, but its not because the women is the primary aggressor.

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As in situation described above, some police officers fail to investigate the circumstances surrounding violence calls like they do other crimes, leaving it for the judge to sort out. Unfortunately, if police officers do not investigate thoroughly, there is no evidence collected to facilitate fact-finding in the court. This approach undermines the investigative role of police and creates a he said/she said scenario that equally discredits both parties. Arrests of victims of abuse can have serious repercussions for survivors ability to access services, willingness to call police for help in the future, and custody cases in the event of divorce.

Victim Blaming Another frequent theme in accounts of resistance to antiviolence work is victim blaming. Respondents identified two primary types of victim blaming. In the first type, friends and family members blame victims of woman abuse for their own victimisation. This type of victim blaming serves a defensive purpose that allows people to maintain their view of the world as safe. For example,

I think it is really hard and we don't want it to happen to us and we don't want it to happen to our loved ones and we wish it didn't exist at all so we have to find somebody to blame. It's easier to blame the victim because they are the one who is carrying the story and they are the ones who are carrying the pain right to our doorstep.

Victim blaming takes the pressure to solve the problem off of the individual hearing the disclosure.

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Another frequently mentioned type of victim blaming is portraying woman abuse as mutual, reciprocal, bi-directional, or symmetrical. One advocate expressed it this way,

I can quote verbatim from [a local shelters] brochure which says domestic violence will not stop until people realise that it is the responsibility of all parties involved to end domestic violence. It is not an either/or proposition, it is a both/and proposition and both partners must recognise their responsibility. So it's a dance of mutual destruction.

According to this understanding of violence, violent men cannot stop being abusive until women change their behaviour.

A closely related type of victim blaming is claiming that women are as violent as men. Respondents reported this argument is used for several purposes: to attack existing services for abused women, to discredit womens reports of violence, and to dismiss gendered understandings of violence. For example, The biggest arguments we get are that they are saying that women are just as violent as men and when there is physical violence on a woman they are saying she is at fault because she attacked him first. As in this quotation, the argument that women are as violent as men is often raised when there is a record of physical violence. In these cases, the argument is used to explain away reports and evidence of abuse.

Discrediting Women/Feminists Discrediting women and feminists as sources of knowledge is another popular backlash tactic. It is used by individual abusers, individuals involved in state institutions such as the courts, and organised anti-feminist groups. One respondent described the way that abused

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womens accounts are dismissed as not credible if they fail to mesh with cultural stereotypes, So one of the implicit arguments is that we all know what battered women look like, and this isnt it. Another respondent described how stereotypes continue in the face of evidence due to womens lesser authority as scholars and experts:

One of the things about domestic violence is that most people have had some experience regarding domestic violence. Theyve committed it, theyve been a victim of it, theyve had a friend or someone that was involved and therefore they think they understand it. And often they dont have the full story or they cant be objective, but they think they know it. Theres not an openness or a willingness to look for the real experts. And I think most of the time the experts are women and in this society we dont take women as seriously as men. And so I think that contributes to it. So you have people who think they know the issues who dont. And so they keep making mistakes and theyre not open to being told they are making mistakes.

Another example of discrediting women is the application of a higher standard of proof to women than men in abuse cases. One respondent said, Women are given a higher standard of proof than their abusers, are given less credibility than the abusers, they face stereotypes and they are paying for their abusers actions.

Many respondents reported that individual womens reports of violence are routinely dismissed as false allegations. For example, this is utterly pervasive throughout the court system and all areas of jurisprudence, is that shes making it up. Shes just vindictive and shes using this to get back at me. Claims of false allegations appear to be especially

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common in custody proceedings where mothers raise the issue of abuse in court. One respondent said, the assumption is that women are making false accusations in order to gain an advantage, or to take children out of their fathers lives so you have that. The claim that women gain some advantage over men by reporting violence serves to discredit all womens reports of violence.

In addition to discrediting individual womens reports of abuse, discrediting feminists and the domestic violence industry were frequently named by respondents as backlash tactics. Despite the popular belief that domestic violence awareness is a fait accompli, the idea that Domestic violence doesn't happen here continues to be used against anti-violence advocates. This idea rests on the assumption that the battered womens movement exists not because violence against women is an actual problem, but because feminists have an evil agenda to take over the world and they must be stopped. As another respondent put it,

I think one of the biggest arguments which is so ludicrous its almost impossible to refute, the big one that we hear from the mad dads is that domestic violence is not actually a problem. And that its something that is so exaggerated and that its just sort of perpetuated by the domestic violence industry. Its not part of this scenario because domestic violence only happens in you know .0001% of all relationships.

Such claims are used to minimise the extent of mens violence against women and argue against the continued provision of resources for survivors.

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Individualization As a backlash tactic, individualisation promotes popular understandings of violence and abuse as interpersonal problems that do not merit a collective response. For example, respondents reported decontextualising the problem of violence by saying things like its a people issue, not a gender issue. Individualising approaches to violence dismiss the cultural context in which it occurs as irrelevant. Sometimes, this involves dismissing the research on violence altogether, as in this example:

Another thing that Ive seen is when we talk about research and theyll say well just because most abusers do that its unfair, youre dealing with an individual case. So we dont need that kind of research, were dealing an individual case here.

This effectively dismisses the thousands of studies on the nature and dynamics of violence and abuse.

Another example of individualization involves looking at specific acts or behaviours through a narrow and decontextualised lens. One respondent put it this way:

If a woman hits back in self-defence or to make him stop or whatever youll get unqualified professionals to say well thats the same as what he did without an understanding of what was the purpose. Controlling behaviour patterns, all that.

Another respondent described individualisation in media coverage of abused mothers custody disputes.

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You will get the media talking about individual cases. What you dont get is the media doing the kind of investigation to show the patterns of abuse that are really important. Because you know, if you take one of these cases and weve I dont know if youve seen the term, we tend to call them custody visitation scandal cases. But we tend to get these cases, and if you look at one case, you have an extreme result, which on the surface looks like its wrong but you cant be sure cause you know maybe theres something wrong with that one mother. And after all, one of the common abuser tactics is to demonise the woman. But when we look at hundreds and thousands of these cases, its easier to see a pattern of mistakes that the courts are making, that cause so many children to be sent to live with abusers. And the media has really been remiss in exposing this pattern.

This quotation describes the relationship between media accounts and collective understanding of the issue of woman abuse and child custody.

Changing the Subject Changing the subject away from woman abuse to some other problem was a backlash tactic named by many of the respondents in the study. One advocate described efforts to persistently change the subject during a training session.

There were a couple of men from an anti-violence organization in [our state] in that training and they argued, they argued with us about whether the problem of teen dating violence was more really more equal, that really, boys and girls were both being victimised at the same rate. And just keeping us stuck in that, stuck

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there and not being willing to get off of it and move on. It looks like men coming to workshops and participating and then having to be right. You know like, not being able to take coaching, not being able to move on after theyve been asked to sit down. And just, what do you mean, what do you mean by that? you know and just you know like, typical white male privileged bull, you know?

Similar experiences were recounted by a number of advocates who saw the insistence on changing the subject as a way of resisting the expertise of survivors, advocates, and scholars who focus their energies on violence against women. The unarticulated assumption appears to be that neither advocates nor scholars should be focused on women and girls experiences if men and boys needs and demands were not being met first.

Many respondents also reported abusers use of frivolous complaints against their partner in order to retaliate for reporting of abuse or to distract the courts from reports of abuse. For example,

One of the early cases that I got into was a police officer who would throw everything he could throw at his former wife so and she was arrested I think 8 times in the end. None of his charges ever stuck, but it made her lose a lot of jobs and so, in one case he would be accusing her of the first way he got the baby was to accuse her of drug addiction. And she went through the hoops, jumped through the hoops she went through 18 random drug tests, all of them came out clean. The head of the drug testing unit was there to testify that she was not a drug user and yet the courts favoured the father and the judge very clearly said that it was because he was a police officer and he trusted the police officer. So first it

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was drug abuse, then he came back later and charged her with parental abuse and then he charged her later with one thing after another and it was like throwing it was like throwing wet toilet paper at the ceiling to see what can stick. Its a game, he charged her with a whole series of different things. And to see what could stick and now what theyve come up with is parental alienation and thats the one thats sticking now.

When used as an individual tactic, changing the subject serves to distract the court or others from investigating the abuse at issue. It also serves to create an impression that the parties are engaged in a mutual fight since they are both making complaints. Often, this is used as an excuse to avoid fact finding or investigation of the reported abuse.

Direct Attacks and Threats Finally, direct attacks and threats continue to be used to resist the battered womens movement. Of course, threats and attacks are used by individual abusers against their partners. In addition to the obvious examples of threats and perpetration of physical and sexual violence against partners who had reported abuse or sought assistance in leaving, abusers used a variety of other tactics. In a cultural context where the use of violence is condemned, more indirect forms of abuse have developed. Abusers threats and efforts to take custody of children were frequently reported. For example,

You know the basic, the most common tactic is seeking custody or joint custody. And, what were talking about and I probably didnt say this before but weve made a lot of progress in the movement to end domestic violence and theres now more people in the community to help victims of domestic violence, there

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are more services and resources and ability to, for women to get away, and obviously abusers dont like that. They believe they are entitled to maintaining control. So theyve needed to develop other tactics to maintain what they believe is their right to control their partner. And the most unspeakably cruel tactic is seeking custody for the purpose of punishing her for leaving, or to try to make her come back. And so you have all of these cases where the mother has been the primary parent or the father has been abuser to her and often the children also. And hes seeking custody for all the wrong reasons. And the court isnt getting it.

In this example, the respondent notes the courts complicity in facilitating ongoing abuse and control via the child custody determination processes.

Direct attacks and threats were also used against advocates and anti-violence organisations. For example,

Ive had threats from individuals, right? Of personal violence against me and I think about the individuals, abusers, everything from being in my face, sort of like physically threatening me in the courthouse. There was the guy who was threatening one time left me phone threats against my family, they tracked me down right? Described where I lived. So theres that kind of level of threat stuff. Primarily from abusers. Theres also periodically over the years the threat to contact funders has come up, either from individuals or from other programs or agencies who havent liked a sort of stance. So thats a common one you know.

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Other respondents described attacks related to their jobs, such as complaints to professional organizations and frivolous lawsuits. Often, these attacks were instigated by individual abusers against an individual or organisation that had provided assistance to the woman or children they were abusing. However, a variety of allies assisted the abusers in carrying out the attacks both directly, by facilitating particular cases, and indirectly, by legitimating abusers claims and catering to their demands.

Conclusion This paper has provided a brief overview of the tactics of antifeminist backlash as reported by anti-violence advocates. In sum, the study participants identified a staggering variety of tactics including: resistance to acting on legal and policy changes; victim blaming; discrediting women/feminists; individualisation; changing the subject; and direct attacks and threats. These tactics crossed levels of social ecology, from intervention in individual cases to the promotion of understandings of violence and abuse that jibe with abusers articulated beliefs.

The tactics were often contradictory and inconsistent. Like sexism and woman abuse, antifeminist backlash is multivalent. As such, it requires a broad collection of responses which strive to maintain the visibility of the larger patterns in gendered violence as well as maintaining the focus on violence against women in the face of objections to this emphasis from individuals and organisations.

There are several areas where further research is needed to understand and counter the backlash against the battered womens movement. As many of the interviewees noted, scholars need to continue to develop measures of violence that more accurately reflect its

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realities. They also need better measures of the social context of persistent inequality that continues to promote violence and abuse. Existing measures of social inequality are extremely crude and narrow. Many were developed in the 1960s and 1970s and are inadequate to identify much less assess contemporary manifestations of inequalityperpetuating beliefs, attitudes, practices, and structures.

Additional research is also required to investigate the outcomes of antifeminist backlash. Contexts such as the family courts, which are so key to abused womens safety, have barely been investigated in the United States. As the Australian experience with family law reform and its evaluation shows, this is one area in which the demand for future research is heightened due to ongoing effects on entire families. Careful attention to the interaction of justice and other systems are of central importance to ongoing work to prevent and intervene in violence against women. The respondents accounts reveal the interlocking dynamics of oppression of abused women that, viewed individually, do not tell the whole story. As Marilyn Frye argued,

The experience of oppressed people is that the living of ones life is confined and shaped by forces and barriers which are not accidental or occasional and hence unavoidable, but are systematically related to each other in such a way as to catch one between and among them and restrict or penalize motion in any direction. (1983: 4).

Abused womens experiences might be understood in a similar fashion. By definition, criminologists focus on formal and informal justice systems. However, it is equally important

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to attend to the interplay of media, economics, academia, and culture if we want to end violence and abuse.

References Chesney-Lind M (2006) Patriarchy, crime, and justice in an era of backlash. Feminist Criminology 1(1): 6-26. Collins P H (2004) Black sexual politics: African Americans, gender, and the new racism. New York, NY: Routledge. DeKeseredy W S (1999) Tactics of the antifeminist backlash against Canadian national woman abuse surveys. Violence Against Women 5(11): 1238-1257. DeKeseredy W S and Schwartz M D (2005) Backlash and whiplash: A critique of Statistics Canadas 1999 General Social Survey on Victimization. Retrieved January 7, 2008, from http://sisyphe.org/article.php3?id_article=1689 Dragiewicz M (2008) Patriarchy reasserted: Fathers rights and anti-VAWA activism. Feminist Criminology 3(2): 121-144. Faludi S (1991) Backlash: The undeclared war against American women. New York: Crown. Frye M (1983) Oppression. Politics of reality: Essays in feminist theory (pp. 1-16). Freedom, CA: Crossing Press. INCITE (2003) Critical Resistance-INCITE! Statement on gender violence and the prisonindustrial complex. Social Justice 30(3): 141-151. Martin D (1981) Battered wives (2nd ed.). Volcano, CA: Volcano Press.

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Minaker J C and Snider L (2006) Husband abuse: Equality with a vengeance? Canadian Journal of Criminology and Criminal Justice/La Revue Canadienne de Criminologie et de Justice Pnale 48(5): 753780. Schlesinger T (2008) Equality at the price of justice. NWSA Journal 20(2): 2747. United States Department of Justice (n.d) The Violence Against Women Act: Commemorating 15 Years of Working Together to End Violence. Retrieved from http://www.ovw.usdoj.gov/vawa15.htm

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Just Stupid Drama Queens: How Police Constrain, Regulate, and Punish the Public Visibilities of Sexual/Gender Diversity as Out of Place

Angela Dwyer School of Justice, Queensland University of Technology, Australia

2 George Street, Brisbane, Queensland, 4001, Australia Email: ae.dwyer@qut.edu.au

Conference sub-theme: Sex, Gender and Justice

Abstract Using interview data on LGBT young peoples policing experiences, I argue policing practices work to constrain public visibilities of sexual and gender diversity in public spaces. Police actions recounted by LGBT young people suggest the workings of a certain kind of visuality (Mason, 2002) and evidenced more subtle actions that sought to constrain, regulate, and punish public visibilities of sexual and gender diversity. Aligning with the work of sexualities academics and theorists, this paper suggests that, like violence is itself a bodily spectacle from which onlookers come to know things, policing works to subtly constrain public visibilities of queerness. Policing interactions with LGBT young people serves the purpose of visibly yet unverifiably (Mason, 2002) regulating displays of sexual and gender diversity in public spaces. The paper concludes noting how police actions are nonetheless visible and therefore make knowable to the public the importance of keeping same sex intimacy invisible in public spaces.

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Keywords: Visibility, LGBT (lesbian gay bisexual transgender), sexualities, gender diversity, public spaces, constraint, punishment, regulate, discipline, embodiment, heteronormativity, performativity

Introduction A lot of them are gay or bi expressing themselves....theyre singled out and sort of picked on by police...even if theyre not doing anything wrong, theyre approached, bullied and sometimes run out of the city for no valid reason whatsoever...other than were an eyesore...it could be because weve got some sort of outrageous colourful outfit on. Its just if we dont fit in to what the general population is tending to look like, we tend to be looked at and sort of not always picked on but sometimes that has been exactly the case but generally just watched really closely more than someone else (Quintin, gay male, 17).

This quote from a young gay male demonstrates the complexity in which LGBT youth-police relations unfold. It is not obvious to Quintin exactly what it is that makes him uneasy about police, but he knows he and his other gay peers visibly attract their attention in public spaces. I argue Quintin is elaborating on what he perceives to be sexuality and gender diversity being subject to constraint, regulation, and punishment by police actions. Young participants perceived their interactions with police to be unfair, yet this data tells us nothing about the actual intentions of police. I suggest police actions may have served another, more subtle form of disciplinary correction for LGBT young peoples behaviour as a [v]isible yet unverifiable means of correction (Mason, 2002: 20). I examine these issues in relation to notions of how LGBT young people represent bodies out of place and how, subsequently, police may be seen to be punishing or constraining the public visibility (Tomsen, 2009: 39)

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of these young bodies. Conceptualising their interactions in this way enables an understanding of how the general public come to know about the appropriateness (or not) of making a spectacle of same sex intimacy in public spaces (Mason, 2001). This may seamlessly correct the public embodiment of queerness among LGBT young people who are subtly encouraged to regulate their behaviour in line with these expectations.

Situated in this framework, I examine qualitative data from 35 interviews with LGBT young people aged 12-25 in Brisbane, Queensland, Australia, mostly at an LGBT youth support service during drop-in times (12.30pm to 4.30pm, four days per week, from approximately October 2008 to April 2009). Participants were questioned about their knowledge and perceptions of police, and their specific interactions with police in public spaces. In applying the framework above to this data, I attempt to move away from causation explanations that individuate and blame young people for their police interactions. I am interested in showing, in contrast that LGBT young peoples accounts of policing elaborate versions of being in public space that are sanctioned in specific contexts and, in turn, enable such situations to even begin to say something about the object (Mason, 2001: 32), in this instance, of policing.

Poststructural Framework: A Focus on Visible, Non-heteronormative Embodiment This research was underpinned by poststructural assumptions about the concepts of the body (Foucault, 1984; Kirby, 1997), discipline (Foucault, 1977), visibility (Skeggs, 1999), heteronormativity (Jackson, 2003), place (Dalton, 2007; Moran and Skeggs, 2004), and performativity (Austin, 1979). Bodies are inscribed (Foucault, 1984) by discourses of queerness that mark the body as a text of discursive knowledge informing the very matter of [the] bodys material constitution (Kirby, 1997: 3). This enables an understanding of how

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the body can be done (Butler, 1990) in ways that perform a discourse of non-heteronormative (Jackson, 2003) queerness and that may be read as discursive texts by police. This includes language which functions in a distinctly performative (Austin, 1975) manner, with talk understood as performing an action (Austin, 1975) by way of speech acts that literally perform the act of which they speak.

Reading bodies in this way implies a certain visibility and questions of what should be visible and what should not, who should occupy space and who should not (Moran and Skeggs, 2004: 7). LGBT young people are seen as the subject-to-be-looked-at (Young, 1996: 210) exemplifying how not to do heterosexuality in public spaces. Nonheteronormative embodiment here also implies those that fail to align with heterogender (Pringle 2000) that is, the expectation that a person is and acts either male or female. In doing non-heteronormative embodiment, then, a persons conduct may be situated as nonheteronormative and/or non-heterogendered and therefore improper. Most importantly, visibility is about place recognition of being in and out of place that invariably invokes regimes of placement (Moran and Skeggs, 2004: 7). LGBT young people represent bodies out of place, both in terms of not being heterosexual and being in public places. They represent ungovernable (Dalton, 2007: 385) bodies in need of regulation, breaching boundary of properly heterosexual spaces that divides, separates and distributes...[and] has clarity, is impermeable, stable and fixed (Moran and Skeggs, 2004: 10).

Constraining the Public Visibilities of Bodies Out of Place Police appear to constrain public visibility of LGBT young people as bodies out of place in public spaces as their bodies fail to align with heteronormative and heterogendered normality. By constraint, I am referring to Foucaults (1977: 11) elaboration of constraint in terms of

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discipline as a system of constraints and privations, obligations and prohibitions. Constraint was subtle and was grounded in being out of place (Moran and Skeggs, 2004). Physical constraint was less common, with comments focusing on feelings, weird looks almost undetectable limitations and moderations of their behaviour. These forms of constraint were attached to how their bodies made their gender or sexuality visible in ways that transgressed heteronormative expectations: if Im not looking really gay theyll be a lot nicer (Nikolas, gay male, 18).

Its not that much of a problem for me considering I look like a chick and they just call me a slut: Constraining Gender Diversity in Public Spaces Police actions appeared to constrain gender diversity in a range of subtle ways, but these actions were nonetheless perceived by LGBT young people as constraining. The actions were sending them a message about how they were doing (Butler, 1990) gender in ways that fell out of place in heteronormative and heterogendered public spaces. Alex (male to female transgender, 25) suggests being out of place in terms of gender diversity is a power thing youre giving up your right being male and dominant. Police detected gender diverse embodiment and sometimes moved out of these spaces to avoid them:

When I was in drag yes...it trips them out...they just wanted to get away from me (Alexis, gay male, 19).

We had that incident they [police] came and at first they were saying the other people were at fault, and then I was saying my girlfriend, that I wanted her next to me because I was bleeding. We all have short hair my group and we dont dress in dresses, were all kinda tomboys...I think as soon as they realised thats the

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way it was, they kinda switched...their attitude towards us and started to be quite negative and starting to blame us for the incident itself (Kimi, lesbian female, 21).

Although far removed from targeted abuse of LGBT people in history (Tomsen 2009), police actions made it clear to LGBT young people that their physical presence was not appreciated in heterosexual public places, and they were out of place. Police appear to have decided these young people are a problem and have subsequently sought to constrain, albeit subtly, the gender diversity of these participants. This could be problematic for LGBT young people when police have expectations about how the young persons conduct was visibly at odds with their embodiment of gender:

Im a pretty butch girl so Ive never had any really good relationships with police...I didnt really get treated that well cause they were like, Ah you should stand up for yourself youre butch ha ha, and it was just like Yeah Im a 14 year old kid with shaved head (Tayden, pansexual, 19).

Visibility and surveillance are central to how subtle assumptions like these act as forms of constraint. This makes known to LGBT young people that gender diversity situates them out of place in a heterogendered space. How this gender diversity is perceived by police seems to inform how LGBT youth-police interactions unfold:

I was assumed to have been a guy and was treated as a male at first until they saw my ID so I was treated pretty badly and I hadnt done anything...just doing routine checks on shit...then that officer that kept on pushing those matter was

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informed that Im a chick and then totally stopped and changed the way he spoke to me (Xavier, female to male transgender, 22).

In this instance, gender diversity produced constraining and productive outcomes for Xavier. The outcomes though remain the same LGBT young people perceive police actions as showing them that gender diversity ought to be out of public spaces.

Public affection or something like that. Its not allowed in Queen Street: Constraining Sexualities in Public Spaces According to LGBT young people, same sex intimacy was constrained consistently by police. Alex notes this could be as subtle as a look from police: I dont know its just very different. Ive been with my boyfriend with police around but just because were pretty normal looking people. They kinda just give you a weird look and look the other way (Alex, male to female transgender, 25). These weird looks act as a subtle form of constraint, just enough to make it clear to this young person they are out of place and to invoke self-governance measures to not appear so outwardly gay.

Young peoples accounts in this study did demonstrate more overt examples of nonheteronormative behaviour being constrained by police. Holding hands, kissing, or hugging between same sex couples visibly drew the attention of police as out of place in public space. Some young people acknowledged police may react to how LGBT young people are out and proud and can flaunt (Mason, 2002) this in ways attracting police attention:

Some of the younger dykes out there that are like 15 16, theyre still at that younger stage where they find it necessary to write the word lesbian on

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everything they own and shit like that...some of them cop it a fair bit. I think theres a bit of a street mentality where people are like, Well we dont run around writing heterosexual on all of our stuff. Why do you have to wave it in our face? (Ticket, lesbian female, 19).

A lot of young LGBT people are scared of police as well because I guess with our culture, its not socially acceptable to do a lot of things out in public like kissing, hugging, and I think especially a lot of young ones just like to push their buttons (Tayden, pansexual, 19).

Even if this is how these young people are perceived, they continue to have the right to congregate in public space and recreate with other young people. Interestingly, these views align with those expressed about the Sydney Gay and Lesbian Mardi Gras (Waitt and Stapel, 2011: 208), where visible displays of raunchy intimacy ought not be made public by the Mardi Gras event. Displays of raunchy same sex desire are unruly (Dalton 2007) and clearly out of place, a view that Ticket suggests the police would share. Police regulate the boundaries (Moran and Skeggs, 2004) of waving it in your face, with individual officers imbued with the power to decide who has and has not transgressed this boundary.

LGBT young people in this study described other forms of constraint involving language. Homophobic pejoratives were not commonly used, yet when they were used by police, the young person recognised the words were spoken as an act of constraint. When asked if police had ever used this language in interactions with LGBT young people, Xavier (female to male transgender, 22) stated, Oh yeah you fucking faggot Ill fuck you like a bitch that you are. Other young participants noted how these forms of language served to constrain not only the

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behaviours of those on the receiving end of the comments, but also those who witnessed the exchange:

One of my friends was pulled over once and hes the biggest queen youll ever meet...hes got the pitched voice, hes walks, sounds, talks like a stereotypical gay guy and he was pulled over. I was in the car at the time, the police had pulled him over just for a routine breath check, doing their job. He was breathalysed. He said Is everything alright officer? and he said Oh shut up you stupid faggot...I said nothing because theyre the police and I dont want to get into trouble. Ive been in trouble, dont want to more (Pinky, gay male, 18).

Pinky knows the situation above is unfair and feels he should say something, yet he does not. Homophobic language had its desired effect it has acted (Austin 1975) in ways that lead Pinky to constrain his behaviour for fear of potential further trouble from police. These are the material effects of homophobic language for LGBT young people. As Pinky reflects on the situation above, he expects he will always be the subject of homophobic language from police and the public:

Youre going to get that from everyone if you hold hands, if you kiss in public, just put your arm around their shoulder, youre going to get looks, youre going to get whispers youre going to get people calling out faggots or dykes (Pinky, gay male, 18).

Pinky recognises that doing same sex intimacy in public spaces in any form makes nonheteronormative sexualities visible (Skeggs 1999) in ways that situate them as out of place

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(Moran and Skeggs, 2004). More importantly, it is clear that one off remarks like these align with what Mason (2002: 20) calls a [v]isible yet unverifiable means of correction they correct same sex intimate behaviours in public spaces by excluding them from these spaces.

LGBT young people noted police actions similarly worked as a means of correcting same sex intimacy in public spaces.

Theyre always pulling up if a guy lays on another guy or if a girl lays on another girl, theyre pulling it up pretty fast but like if I laid on a guy, they wouldnt overly worry about it too quickly (Sarah, male to female transgender, 17).

While Sarah is technically out of place as a male to female transgender young person, she identifies as a female with a boyfriend and passes successfully as heterosexual and heterogendered and in place. This interaction highlights that, while the imperative to hide diverse sexuality has fallen away somewhat in contemporary times, the common expectation to do this continues to serve as the favoured benchmark against which all representations of homosexuality are measured (Mason 2001: 24). Police appear to use this benchmark to measure behaviours of LGBT young people in public spaces. It is expected they will adhere to unspoken homonormative ideals (Bell and Binnie 2004) about not flaunting their sexuality in public spaces; that is non-threatening, almost invisible (Waitt and Stapel, 2011: 209) queerness.

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A Bit over the Top: Regulating the Public Visibilities of Bodies out of Place While informal regulation and formal punishment were less common than constraint, police actions shifted towards regulation in two ways: through homophobic language; and applying formal legal sanctions.

Once you wear the uniform, leave the other shit at home: Language as Regulation According to LGBT young peoples accounts, police used language to regulate bodies falling out of place in how they were visibly non-heteronormative. This was particularly the case for transgender young people. For example, one participant recounted a situation where a police officer physically acted on the body of a young transgender female: One of my friends Holly who is a transgender person...shes still male but she wears a wig and dresses up and the cops ripped her wig off in public once to taunt her (John, gay male, 18). This situation clearly exemplifies police acting on a young gender diverse body because this body does not match with heterogendered (Pringle 2008) expectations, but this is the only case of this happening in this study. More common was the use of language to regulate transgender bodies for being out of place in public space:

One person...shes transgender, in the process of becoming a woman, was asked to show her ID, and it came up male...and they were saying But youre a fucking male...stop lying to us. It was pretty obvious she looks like a girl (Pinky, gay male, 18).

These words appear no less effective than physical actions they produce the same result: they regulate transgender visibility in public spaces as soft targets...disciplined for their gender non-conformity (Tomsen, 2009:42). Police actions demonstrate to Pinky, to the

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transgender young male involved, and to onlookers that these bodies are out of place and in breach of legislative frameworks. They are the subject-to-be-looked-at, seen to be defying heteronormative boundaries, and are ill-disciplined in this defiance.

I see you live with a bunch of lesbians: Police Use of Legislative Punishment Police also formally punished public visibilities of this group via authorised legislative forms of punishment. Although it is clearly unfair that police issue fines to boys who are making out with boys, it is not breaching the boundaries of the legislation. Individual officers have here interpreted the legislation broadly (in terms of public offence) and issue fines as punishment for visibilising their non-heteronormative intimacies in public spaces.

Even though there were times when young participants were unsure if it was their sexuality that police responded to, elements of situations recounted suggested this may be an issue. At least one LGBT young person, however, concluded police actions were based on displaying same sex intimacy in public places:

I was walking through Queen Street with one of my friends and we were coming from Fat Louis. Wed had a few drinks. We werent drunk going over to the train station...We were holding hands through Queen Street and the police pulled us over and like Youve been drinking havent you? Where have you been drinking? and Im like Fat Louis and theyre like Oh dont lie to us, took us back to the cop shop and gave us each a $100 fine...drinking in public (Nikolas, gay male, 18).

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I got a $125.00 fine for telling a copper they looked hot in their uniform, this male cop. If I had of been some big breasted blonde bimbo, he probably would have let me off the fine...but cause he was a straight male copper that was insulting to him...cause I was in a car when I said it, and we were driving past him, the way he charged me was he said I had my body parts out the window...so he wrote the fine out under that and they had me in the interview room and he told me that he was giving me the fine because that offended him ...cause he knew he couldnt give me a fine just for telling him he was hot (Mac, gay male, 19).

The cops came up to them and started harassing them pulling them apart and saying they were causing a nuisance to the public, and if they keep doing it theyre going to handcuff them and take them away...just for kissing in public. I got in trouble for public nuisance because I had no clothes on, that is understandable, but kissing in public, its fucking ridiculous...and I couldnt say anything cause I wasnt sober and underage...and you get in trouble for interfering (Jimmy Von D, lesbian female, 16).

Like Pinky, Jimmy Von D has come to know about how same sex intimacy can be out of place, and how it may be problematic to respond to this even if she knows it is unfair of police to regulate these activities. Police actions in these examples again constrain not only the behaviours of those who police initially interacted with their actions equally correct LGBT behaviours on a broader, more publicly visible scale. Onlooking LGBT people know they need to regulate how they behave in public so as to avoid attracting similar police

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attention. Police actions discursively mark these bodies and same sex intimacies in public spaces as deviant, rendering them criminal subjects (Dalton, 2007: 398).

The use of punishment by police was not always so subtle or ambiguous in terms of enacting non-heteronormative sexualities and/or genders. Indeed, some examples demonstrated how legislative frameworks, which are never unambiguously and precisely written (Chan et al., 2004: 73), afforded police opportunities to use discretionary powers in ways that would otherwise constitute a breach of basic human rights:

The cops, some of them can be better than others. But some are strict on kissing in public... Ive seen a couple of people actually ticketed for being in the street kissing, two guys (No Name, bisexual male, 19).

The two guys in this instance constitute the existence of an unruly desire that is both out of place (by virtue of being public) and ungovernable (Dalton, 2007: 385). The police act to regulate this unruly desire and, in turn, make visible to No Name that displaying same sex intimacy in public places deserves to be punished. Another gay male participant Alexis (gay male, 19), was twice detected and fined by police: first, for making out at a train station with his male partner: The coppers came along and fined us actually...this is public offence or some crap...fined for public disturbance; and second for making out in a shopping centre with his male partner at like 9 at night on a late night. I got charged again...public nuisance or disturbance...Im like This is not cool. Would you like me to go do it in a hole?. Alexis is well aware these police actions fall outside the boundaries of sanctioned police discretionary powers, yet his only means of recourse is to not pay the fine: havent paid it...it was just making out with a guy that you like in public Jesus Christ not guilty. Alexis

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resists the punishment police give him, a move which unfortunately serves to criminalise him further.

These examples demonstrate the application of the Summary Offences Act Qld (2005, s.5.6). This Act includes the offence of public nuisance106 and behaving in an offensive way which police interpret here as inclusive of same sex intimacy in public spaces. Particularly problematic in these examples was how, just as police officers assumed entitlement to gaze upon semi-naked bodies of lesbians in Lambles (2009: 120) work, so too did officers in this study assume entitlement to intervene in expressions of same sex intimacy in public spaces. Police assume public space is a pure, moral space in which same sex affection constitutes improper, unclean use of this space. Dalton (2007: 380) makes a similar argument about beat spaces where historically the logic of gay sexuality as diseased played out in police interactions with men encountered at beats.

Under Their Breath: Concluding Thoughts Under their breath was how Pearl (male to female transgender, 19) described the subtleties of police constraint, regulation, and punishment, and this captures succinctly the dynamics of how this happens with LGBT young people. The accounts presented, according to Hall (2005: 69), may be reminiscent of hate crime where this acts as a message crime it conveys a strong message to the general public about a particular person or group is different, unwelcome and that any member of that community could be the next victim.

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(2) A person commits a public nuisance offence if (a) the person behaves in (i) a disorderly way; or (ii) an offensive way; or (iii) a threatening way; or (iv) a violent way; and (b) the persons behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

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While the data here may not resemble hate crime in that we know nothing of police intentions, it nonetheless produces material effects for LGBT young people who are subject to, or witnesses of, police actions. Police practices subtly constrain and govern young LGBT bodies in ways that blend into the fabric of public spaces, yet still highlight the importance of regulating bodies failing to align with heternormative genders and sexualities. The key issue warranting further consideration is how we have moved beyond this in a shifting contemporary landscape of subtle forms of hate crime, and constraint, regulation, and punishment.

References Austin J L (1975) How to do things with words. Oxford: Oxford University Press. Bell D and Binnie J (2004) Authenticating queer space: citizenship, urbanism and governance. Urban Studies 41(9): 1807-1820. Chan J, Bargen J Luke G and Clancey G (2004) Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997. Criminal Law Journal 28(2): 74-92. Dalton D (2007) Policing outlawed desire: homocriminality in beat spaces in Australia. Law Critique 18: 375-405. Foucault M (1984) Nietzsche, genealogy, history. In: P. Rabinow (ed) The Foucault reader (pp. 76-100). London: Penguin. Foucault M (1977) Discipline and punish: The birth of the prison. London: Penguin. Hall N (2005) Hate crime. Devon: Willan.

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Jackson S (2003) Sexuality, heterosexuality and gender hierarchy: some reflections on recent debates. In: J. Weeks, J. Holland and M. Waites (eds) Sexualities and Society: A Reader (pp. 69-83). Cambridge: Polity. Kirby V (1997) Telling Flesh: The Substance of the Corporeal. New York: Routledge. Lamble S (2009) Unknowable bodies, unthinkable sexualities: lesbian and transgender legal invisibility in the Toronto womens bathhouse raid. Social Legal Studies 18(1): 111-180. Mason G (2002) The Spectacle of Violence: Homophobia, gender and knowledge. London: Routledge. Mason G (2001) Body maps: envisaging homophobia, violence and safety. Social & Legal Studies 10(1): 23-44. Moran L and Skeggs B (2004) Sexuality and the politics of violence and safety. London: Routledge. Pringle J (2008) Gender in management: theorizing gender as heterogender. British Journal of Management 19: s110-s119. Skeggs B (1999) Matter out of place: visibility and sexualities in leisure spaces. Leisure Studies 18(3): 213-232. Summary Offences Act Qld. 2005. Accessed July 30, 2011 http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SumOffA05.pdf Tomsen S (2009) Violence, prejudice and sexuality. New York: Routledge. Waitt G and Stapel C (2011) Fornicating on floats? The cultural politics of the Sydney Mardi Gras Parade beyond the metropolis. Leisure Studies 30(2): 197-216.

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Young A (1996) Imagining Crime: Textual outlaws and criminal conversations. London: Sage.

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Invalidation and gendered violence across the lifespan Michael Salter Lecturer in criminology, University of Western Sydney Email: michael.salter@uws.edu.au

Conference sub-theme: Sex, Gender and Justice

Abstract This article proposes that invalidation is a pervasive manifestation of gender relations as they are expressed through strategies of minimisation, disbelief and denial. Invalidation is embedded within interpersonal and institutionalised arrangements and interactions. It is a constitute element of gendered violence as well as a socio-political condition that enables gendered violence. Invalidation serves to inscribe gender relations upon the bodies of women through the mental and physical health deficits of the gendered violence that it enables and facilitates, as well as through the denial of testimonial legitimacy and the consequent withholding of resources, support and services.

Introduction This article analyses the pervasive patterning of interpersonal and institutional relations whereby womens accounts of their own experiences are silenced and/or re-narrated in a sociocultural context that privileges the masculine subject position over the feminine subject position. Drawing on the work of psychologist Linehan (1993), this paper identifies this pattern as invalidation and shows how invalidation is: a. b. a social and structural precursor to gendered violence, a subjective dimension of the experience of gendered violence,
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c. d. e.

a strategy utilised by perpetrators of gendered violence, a feature of institutionalised and community responses to gendered violence, and a significant source of psychological harm to victimised girls and women.

These multiple manifestations of invalidation are well documented in feminist literature on masculine domination, gendered violence and the experiences of victims and survivors. Through a synthesis of psychological research with sociological and feminist theory, this paper posits invalidation as a common experience amongst girls and women that is politically and socially located and fundamental to the maintenance and perpetuation of gendered inequity. In particular, the analysis focuses on how the various forms of invalidation coalesce and intensify around female victims of gendered violence in ways that compromise their health and safety and their capacity to exercise citizenship. The concept of invalidation draws attention to the ways that gendered inequity can be inscribed upon the bodies of victimised girls and women through abuse and violence, as systemic failures to detect or intervene in gendered violence, or provide adequate care and support to victims, results in multiple quality of life deficits and psychosocial challenges.

Invalidation It is well recognised that women with a history of child sexual abuse are more vulnerable to a range of mental health problems as well as psychosocial issues such as substance abuse, selfharm and suicidal ideation. Linehan (1993) has proposed that this relationship can be explained by the invalidating childhood environments described by many sexually abused women. She defined an invalidating environment as one in which expression of private experience (such as thoughts, beliefs or emotions) is systematically punished, trivialised or negated. In an invalidating environment, the child learns that her thoughts and feelings are of limited value, that her desire to meet basic needs for care and support are selfish, and that

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negative experiences (such as pain, anger or frustration) are the product of unacceptable personality traits. A child raised in a validating environment is supported to recognise and predict the ways in which particular environments give rise to particular emotions. In contrast, a child raised in an invalidating environment does not develop the skills to identify, acknowledge and manage the affective dimensions of her experience, or to recognise and communicate when she is in need or distress. Lacking other methods, she may attempt to express and regulate her emotions in problematic ways such as through self-harm, or what she finds inexpressible may manifest through psychosomatic symptoms.

Linehan (1993) noted that some families constitute particularly invalidating social environments however she highlighted how invalidation occurs primarily to girls and women. Her work suggests that being over-ridden, undermined and enduring the imposition of others views is a common and pervasive experience amongst girls and women in Western culture and she linked this experience directly to gendered inequality. In Linehans (1993: 52) view, child sexual abuse is both the paradigmatic example of sexism and the prototypical experience of invalidation. Not only does the act of sexual abuse involve the denial of the childs own needs and the imposition of the needs of another upon her, but the very fact that sexual abuse usually goes unnoticed by others is, in and of itself, profoundly invalidating to the victim. As her needs escalate as a result of her abuse, the inability or unwillingness of caregivers to recognise and address those needs reinforces the silencing and devaluing dimensions of sexual abuse. In effect, child sexual abuse intensifies the patterns of invalidation that are already embedded in the environment of the girl child, resulting in a lack of emotional competency as the child grows to adulthood struggling to identify, modulate or regulate her emotions, and devaluing her own opinions, emotions and experiences. This process has been linked to the development of personality disorders (Linehan 1993),

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depression (Jack and Dill 1992), eating disorders (Haslam, Mountford, Meyer & Waller 2008), alcohol and drug abuse (Rosenthal, Lynch & Linehan 2005) and acute psychological distress (Krause, Mendelson & Lynch 2003).

Feminist clinicians and theorists have contested the ways in which the problems that women experience in the aftermath of abuse and violence have been pathologised within the psy discourses (Burman 1990; Herman 1992; Ussher and Nicolson 1992). The psychologising of womens responses to abuse and violence has tended to affirm the predominant characterisation of women in psychology, described by Weisstein (1993: 8) as inconsistent, emotionally unstable, lacking in a strong conscience or super ego and weaker in comparison to men. However, recognition of the clustering of problems in the lives of some women with histories of abuse and trauma does not require a medicalised, pathologising model. If invalidation describes, as Linehan (1993) proposes, the persistent disruption of girls and womens efforts to conceptualise and articulate personal experience, and the imposition of more authoritative views upon them, then invalidation is a common and indeed pervasive feature of the social order and not solely an aetiological factor in the childhoods of some mentally ill women. Scutts (1997: xi) observation that [w]omens credibility, or purported lack of it, comes into play in many fields: in law, medicine, economics, domestic life, public life, in society in general can be read as a description of the systematic quality of invalidation, since it is the pervasive devaluation of the accounts and testimony of girls and women that serves as the primary basis for invalidation.

The empirical literature points to the psychological harms and health effects of invalidation, whilst feminist theory highlights the social and political dimensions of invalidation. The following sections will combine these two insights to explore, in more detail, the multiple

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manifestations of invalidation as an expression of masculine domination, and in particular how the harms of invalidation appear to coalesce around female survivors of gendered violence. The paper will trace the role of invalidation as an inherent property of gendered violence, emphasising its interpersonal, social and institutional manifestations, before concluding with some reflections on the political significance of invalidation more generally.

The Role of Invalidation in Gendered Violence Messerschmidt (1993) documented how criminology has traditionally viewed violence as a male biological imperative, and the consequent naturalising of mens violence in research on violence and crime. Common forms of gendered violence such as domestic violence or sexual abuse have been overlooked or else offenders have been pathologised so that their conduct is understood in terms of individual deviance rather than social or cultural factors. However, feminist and pro-feminist theorists have proposed that gendered violence can be understood as a social practice whereby hegemonic modes of gender relations are enacted, embodied and reinforced. The primacy of the masculine subject position over the feminine subject position has been identified as a fundamental principle of the Western political (Pateman 1988), semiotic (Irigaray 1985a) and social (Connell 1987) order. The work of Connell (1987; 1995) and theorists affiliated with critical masculinity theory (e.g. Kimmel, Hearn et al. 2005) has been important in identifying how valued social characteristics are coded as masculine and configured into a hegemonic masculinity that is presented in the cultural imaginary in opposition to a subordinated set of emphasised femininities. They note that, in conditions of masculine domination, social power is not conferred neatly according to biological sex but nonetheless boys and men are necessarily privileged within material and symbolic arrangements that associate masculinity with control, power and domination.

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Masculinity can thus be understood as a culturally idealised state that is realised through the exercise of social power. This approach has been productively applied to the study of violence and crime by researchers and theorists who argue that displays of transgression, coercion and risk-taking, and the experiences of masculine accomplishment that these behaviours generate, are strategies utilised by men and boys to embody culturally prescribed masculine ideals (Kaufman 1987; Messerschmidt 1999; Cossins 2000). Nonetheless, the symbolic and experiential qualities of such masculinity acts are not distinct from their interactional effects, inasmuch as the success of an attempt to claim masculine privilege necessarily rests on eliciting deference or enforcing subordination (Schrock and Schwalbe 2009). Gendered violence is necessarily a dyadic performance in that the production of a sense of masculine accomplishment for the perpetrator requires a woman or child (or occasionally another man) to be forced to occupy the role of subordinate feminine object to the dominating masculine subject. Critical masculinity theory and affiliated theorists have emphasised how the subjectivity of men is shaped through such acts, but the experience of the victim is also structured according to the cultural logic of gender, power and violence, and many of the impacts of gendered violence upon the survivor can be understood in these terms.

The act of gendered violence makes concrete the pervasive (and therefore often implicit and unacknowledged) diminishment of femininity within the cultural imaginary as the victim is forced to occupy the position of (degraded, corporeal) feminine object to the (dominant, transcendental) masculine subject imagined by the perpetrator. This experience is inherently invalidating since the victims subjective experience is silenced and then re-narrated according to the script of masculine domination, as her own thoughts, needs and wants are eclipsed, even if only momentarily, as the perpetrator enforces her participation within a

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production of gendered power. In turn, survivors of gendered violence can and do contest the legitimacy of this imposition and reassert their capacity for self-determination, and much of the energy of feminist movement has come from victims and survivors of sexual abuse, sexual assault and domestic violence. Victim resistance is evident during acts of gendered violence (e.g. Ullman and Knight 1993; Kernsmith 2005) and through the survivors subsequent pursuit of justice, wellbeing and acknowledgement of the harms committed against them (e.g. Profitt 2000; Jordan 2008).

However, for many girls and women, the conditions for a robust counter-response to the invalidating qualities of gendered violence are often absent. Gendered violence is most frequently a relational and repetitious phenomenon that exposes children and women to abuse and coercion over an extended period of time. Many adult victims of gendered violence report a history of abuse dating back to childhood (Coid, Petruckevitch et al. 2001). This is a cycle of abuse and revictimisation made possible by the lack of familial or community support for the victim, the absence of effective policing and justice mechanisms to detect and intervene in gendered violence, and the failure of many health and welfare services to provide adequate support to victims and survivors. Social institutions and arrangements are not only unresponsive to the needs of survivors of gendered violence but they may forcefully reproduce patterns of silencing and invalidation (Kelly and Radford 1990; Davidson and McNamara 1999; Lavis, Horrocks et al. 2005). It is often the case that victimised womens contact with health and justice agencies triggers the psychological symptoms of trauma and distress that have their origins in gendered violence due to the experiential similarities between gendered violence and their subsequent encounters with these agencies. The following sections will consider how this experiential link is produced by the relations of power that structure gendered violence as well as health and justice agency responses, and

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how this relationship compounds and reinforces the invalidation and negation of womens self-hood.

Masculine Domination as an Apparatus of Interpellation Althusser (1971) used the term interpellation to refer to the ways in which the ideological values that have been internalised by the subject through her relations and interactions with others can be activated by operations of power. According to Althusser, ideology is not imposed upon an abstract, pre-ideological subject but rather the subject is always-already interpellated in that it is ideology that constitutes the subject and forms subjectivity. Individuals acquire their identity within social conditions that are implicitly structured by ideology and hence in their social practice they come to embody ideological truths and roles. When the individual is addressed or hailed in ways that invoke the subjects position within ideological structures, the subject recognises herself in relation to that structure. A way of being and feeling is called forth that is both impersonal and intimate in that interpellation positions the subject in relation to an ideology that is simultaneously externally evident and internally familiar.

Gendered violence is just such an interpellation, or a ritual of ideological recognition (Althusser 1971), in that it hails women and children to recognise themselves in the mirror of masculine domination. It is through the effacement of individual subjectivity by the ideological truth of feminine subordination, and its enforcement through coercion and abuse, that the perpetrator can craft the corresponding experience of domination through which hegemonic masculinity is (momentarily) validated and lived. The victim is necessarily possessed of her own agency, identity and needs but the repetitious nature of gendered violence constitutes a system of interpellation that can disrupt the maintenance of an

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autonomous and self-affirming sense of selfhood. The effectiveness of this process is amplified by the subtle and pervasive operations of gendered inequity in everyday life, which incessantly confirms and re-activates the logic of masculine domination (Bourdieu 2001). Repeated acts of violence hails the victim to recognise her subordinate position within the gender order, and thus masculine domination begins to intrude from the realm of the material and symbolic (where, although perfidious, it can still be contested and disrupted by counterideological formations and practices) into the spaces of the imaginary, where it seeks to reorder the victims relation to herself and delegitimise her lived experience of violence and inequity.

This process is made all the more pervasive when, as is often the case, the victim of gendered violence is a child, who for developmental reasons is particularly vulnerable to such an ideological intrusion. Of the one fifth of Australian women who have been sexually coerced (that is, forced or frightened into unwanted sexual activity), half report coercion occurring prior to the age of 16 (de Visser, Rissel et al. 2003). As previously mentioned, women with histories of child sexual abuse are at heightened risk of physical and sexual violence (Messman and Long 1996; Roodman and Clum 2001). Efforts to explain the relationship between child sexual abuse and subsequent revictimisation have focused on the psychological effects of sexual abuse on womens behaviour and functioning (Johnson, Hogg et al. 2010). Although some researchers have emphasised the interaction between personal and environmental factors in revictimisation (Grauerholz 2000) its political implications have been overlooked. The concept of interpellation has considerable utility in explaining how child sexual abuse appears to insert the victim even more deeply into the ideological apparatus of masculine domination, whereupon the ways in which she comes to view herself and her relation to others consistently reproduces a subordinate and self-devaluing

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subjectivity and heightens her vulnerability to gendered violence across her lifespan. When sexual abuse is amongst the earliest and most formative hailings through which the individual is called to recognise herself as a subject, then it stands to reason that the invalidating operations of masculine domination will be all the more efficacious in shaping the ways in which the girl child comes to locate herself within the gender order.

The subordinate feminine subject position determined by the logic of masculine domination is necessarily toxic to a coherent, autonomous pattern of self-recognition and selfunderstanding. Irigaray (1985b) suggests that the concept of the female subject is an oxymoron in the prevailing symbolic order in which the feminine features perpetually as other and never as subject. Children and women face the dilemma that they are just as agentic as men but ideological apparatuses of interpellation persistently hail them to recognise themselves as passive objects to be acted upon by others, and not as subjects. This is the symbolic order into which they are forcefully inserted by acts of gendered violence, and it is the invalidating effects of this operation, whereby their own experiences and needs are overwritten by a culturally pervasive code, that accounts for much of the psychological harms of gendered violence for girls and women.

Naso (2008) suggests that invalidation is an inherent component of trauma and has an important role to play in the development of traumatic responses and illness, since a traumatic experience is one that invalidates self-efficacy and affirms negative selfperceptions. It may be that the insidious invalidation of female experience, including but not limited to gendered violence, might explain the fact that girls and women have twice the rates of trauma-related mental illnesses than men (Kessler, Sonnega et al. 1995), and they are more likely to develop trauma-related illnesses than men in the aftermath of traumatic events (Olff,

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Langeland et al. 2007; Breslau 2009). Men and boys are regularly exposed to physical violence but male victimisation typically involves one-off events rather than repeated incidents, and they are rarely subject to sexual violence. Whilst such victimisation is harmful to men and boys, the attending invalidation and powerlessness is often ameliorated for male victims by the numerous interpellating moments that call them to recognise themselves as authoritative, self-determining subjects, whereas the contradictory subject-as-object position invoked by gendered violence for girls and women may intensify and became even more deeply embodied through the endless permutations and varieties of gendered inequity.

Strategies of Invalidation Invalidation is an explicit as well as implicit characteristic of the experience of gendered violence, since perpetrators of gendered violence capitalise upon the strategic utility of invalidation in the course of their violence. Through strategies of invalidation, the perpetrator attempts to other the woman to herself by crafting an image of her that she does not recognise, and thus alienating her from her own identity and experience. This creates an opportunity for him to impose a reconstruction of the event upon the victim that simultaneously reinforces his sense of masculine prestige whilst minimising the risk of disclosure or complaint. In doing so, he draws on the power (traditionally conferred on men) of defining people, events and relationships in order to contest and reshape womens and childrens experiences of abuse and violence so that his voice and his truth seep into womens and childrens minds and beings in complex and interlocking ways (Morris 2009: 417-18). Thus invalidating acts can also be understood as masculinity acts, since such acts operationalise masculine privilege in order to further consolidate the dominance of the perpetrator and to recode the worldview of the victim according to the prerogatives of

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masculine domination.

Perpetrators actively structure acts of gendered violence according to hegemonic narratives of masculine domination and feminine subordination. In crafting their performance of gendered power, they seek to contest the validity of the childs or womans experience of victimisation even as it is occurring whilst imputing upon them the role of the willing and/or culpable object of masculine fantasy. Gager and Schurr (1976) stated that the most common utterance of the rapist to the victim is You know you want it. You all want it and afterward, there now, you really enjoyed it, didnt you? In the aftermath of gendered violence, invalidation is a common strategy utilised by perpetrators in order to sustain the masculine subject position that they have claimed through violence and to interrupt the victims efforts to formulate their own understanding of their victimisation. One participant in a qualitative study of survivors of rape reported that, after a deliberately brutal assault, the rapist sent text messages about their great night. She commented, [And I thought] oh, well, I must have misinterpreted him. I must be in the wrong here (Clark and Quadara 2010: 33). A perpetrator may deploy invalidation in an effort to negate the victims recollection out of existence. For example, following child sexual abuse, a perpetrator may tell the child that she imagined what had taken place (e.g. Shay 1992), and such denial may inhibit the encoding of memory for the abusive event (Sivers, Schooler et al. 2002).

It is well documented that the invalidating tactics of perpetrators are reproduced and compounded by the responses encountered by victims in their efforts to seek care, support and protection, whether they report their abuse informally to family and friends, to health professionals, or to the police and criminal justice system (Ullman 2003; Ahrens 2006; Bostock, Plumpton et al. 2009). In the criminal justice system, it is evident that, whilst

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womens accounts of their own experiences of sexual violence may be silenced through discriminatory and exclusionary practices, they are also re-narrated in ways that conflate rape with romance (Philadelphoff-Puren 2005) and force women to rub up against masculine fantasies of flight and seduction (Young 1998). Hence, even where an opportunity to testify is available, victims testimony may be reinterpreted in ways that hold them responsible for the harms committed against them, in accordance with cultural scripts of female enjoyment and complicity in masculine sexual aggression (Smart 1999).

Conclusion The unity of strategy evident between the invalidating practices of perpetrators of gendered violence and the invalidating responses of communities and social institutions suggests that invalidation has an important role to play in the maintenance of masculine domination. The patterning of gender relations with strategies of disbelief, minimisation and denial, and the subsequent overwriting of female experience, serves to devalue girls and womens innermost experiences to themselves as well as to others. Invalidation operates to signify women and children as suitably disempowered objects for the performance and accomplishment of masculinity and thus renders them vulnerable to gendered violence. Invalidation then compounds the harms of victimization by interrupting the efforts of girls and women to cognise and articulate their experience in ways that support resiliency and resistance. Perpetrators as well as families, communities and systems deploy hegemonic frames and conventions of masculine domination to reconstitute womens and girls accounts of gendered violence in ways that directly undermine and contest womens and girls experience of the event, and that call on girls and women to recognise themselves in the terms of feminine subordination e.g. as hysterical, deceitful and deserving of harm. Accordingly many victims of gendered violence come to see violence as something that they deserve or invite

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upon themselves (Cascardi and O'Leary 1992; Ullman 1996) and to question the value of their own thoughts, beliefs and opinions. Exposure to pervasive invalidation leaves girls and women differentially vulnerable to trauma-related mental illnesses, but in the aftermath of abuse and violence it can precipitate an overall self-negation that embeds gender inequity through a diminution in mental and physical health, increasing the likelihood of future victimisation and undermining the victims sense of independence and autonomy.

By understanding the multiple operations of invalidation, we can conceptualise the ways in which perpetrators, families, communities, institutions and systems collectively compromise the health and life outcomes of girls and women and differentially expose them to the harms of gendered violence across the lifespan. This is a perspective that can inform a range of responses from education and prevention strategies through to treatment, as well as the processes of the criminal justice system, police and other agencies tasked to respond to gendered violence. However, Bronfen (1998) warns against conceptualising symptoms of invalidation and trauma solely as health deficits. She suggests that the hysterical responses of women subject to abuse and maltreatment can be recognised, in part, as a form of indirect dissent that manifests the poorness of fit between womens agency and notions of idealised femininity. The distress exhibited by girls and women subject to gendered violence are critical signs of inequity that should not be rendered invisible by treatment whilst its sociopolitical antecedents remain unchallenged. Prevention and intervention in gendered violence should uphold the rights of survivors to health, wellbeing and justice whilst recognising the challenges they face as the product of social conditions that systematically expose children and women to abuse and harm, deny them recourse to natural justice or necessary care, and reinterpret their distress as evidence of feminine flaw and deficiency.

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Social Justice, Governance and Ethics

Social Justice Impacts of the Resources Boom107 Kerry Carrington School of Justice, Faculty of Law, Queensland University of Technology

Margaret Pereira School of Justice, Faculty of Law, Queensland University of Technology

Conference sub-theme: Social Justice, Governance and Ethics

Abstract Until the 1970s mining leases were issued by state governments subject to conditions that companies build or substantially finance local community infrastructure, including housing, streets, transport, schools, hospitals and recreation facilities. Townships and communities went hand in hand with mining development. However, in the past thirty years mining companies have moved progressively to an expeditionary strategy for natural resources extraction - operating a continuous production cycle of 12 hour shifts - increasingly reliant on non-resident, fly-in, fly-out or drive-in, drive-out (FIFO/DIDO) workers who typically work block rosters, reside in work camps adjacent to existing communities and travel large distances from their homes. This paper presents the key findings of our survey into the social impacts of this kind of mining development in Qld. Based on the results we argue that the social license to develop new mining projects is strong for projects requiring a 25% or less non-resident workforce, diminishes significantly thereafter and is very weak for projects planning to recruit a non-resident workforce in excess of 75%. This finding is significant

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We acknowledge the larger ARC research teams inspiration for this project, Kerry Carrington & Alison McIntosh QUT, Russell Hogg & John Scott UNE.

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because there are at least 67 new mining projects undergoing social impact assessment in Queensland, and many it appears are planning to hire significant proportions of non-resident workers. The paper considers the policy implications of this growing social justice issue concluding there is a clear need for national leadership in formulating a national policy framework for guiding socially responsible and sustainable mining development into the next millennium.

Introduction Until the 1970s mining leases were issued by state governments subject to conditions that companies build or substantially finance local community infrastructure, including housing, streets, transport, schools, hospitals and recreation facilities (Houghton, 1983). Townships and communities went hand in hand with mining development. However, in the past thirty years mining companies have moved progressively to an expeditionary strategy for natural resources extraction - operating a continuous production cycle of 12 hour shifts - increasingly reliant on non-resident, fly-in, fly-out or drive-in, drive-out (FIFO/DIDO) workers who typically work block rosters, reside in work camps adjacent to existing communities and travel large distances from their homes. This paper presents the key findings of our survey into the social impacts of this kind of mining development in Queensland. Based on the results we argue that the social license to develop new mining projects is strong for projects requiring a 25% or less non-resident workforce, diminishes significantly thereafter and is very weak for projects planning to recruit a non-resident workforce in excess of 75%. This finding is significant because there are at least 67 new mining projects worth around $50 billion undergoing social impact assessment in Queensland, and many it appears are planning to hire significant proportions of non-resident workers. The paper considers the policy implications of this growing social justice issue concluding there is a clear need for national

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leadership in formulating a national policy framework for guiding sustainable mining development into the next millennium.

Social Impact of Mining Survey: Summary of Results In September 2010 the Queensland Government introduced new social impact guidelines as part of an Environmental Impact Assessment process for assessing new mining and resource extraction projects108. These guidelines require robust research. Compared to mining and resource companies, local communities and small businesses are disadvantaged in not being able to afford consultants to conduct social impact research. The aim of our research was to create a more level playing field for all key stakeholders, government, industry and local business and community by conducting an independent non-industry funded survey of the social impacts of mining development.

The on-line Social Impact of Mining Survey was completed by 559 eligible respondents residing or working in Queensland mining towns and regions. Respondents were recruited through on-line, print and radio advertising, mining community organisations (Mining Communities United, FIFO Families and Mining Family Matters), civic institutions (such as Local Government, Human Service Agencies, Shire Councils and Chambers of Commerce) and contacts randomly selected from community directories. The vast majority of survey responses came from localities in the Bowen Basin Region (Collinsville, Dysart, Blackwater, Emerald, Moranbah and Moura) which services most of Queenslands coal mining and resources sector development.

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Social Impact Guidelines are designed to: collect and analyse information about key social and cultural issues, population change and community and social relationships that are likely to occur as a direct or indirect result of a development project develop strategies for mitigation, management, monitoring, and review. (www.dip.qld.gov.au/coordinator-general-projects/social-impact-assessment.html)

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After answering socio-demographic questions to validate responses, participants were asked to rate their perceptions about the impact of non-resident mining workforces housed in temporary accommodation on a range of aspects relating to their community. Variables included impacts on local employment, the economy, local services, amenities, infrastructure, housing, community safety and wellbeing, and crime and justice. The list of impacts provided to respondents was based on known key risks associated with mining development (Haslam et al 2008; Rolfe, 2007: Storey, 2001; Carrington et al, 2010; Murray and Peetz, 2010). Responses were overwhelmingly negative:

75% felt mining developments with non-resident workforces housed in their communities had an adverse impact (47% very negative impacts and 28% a somewhat negative).

75% felt the impact on housing availability and 79% on housing affordability was negative

76% thought the impacts on local infrastructure was negative (and most very negative - 55%)

76% felt the impact on local services was somewhat or very negative; 63% felt the impact on amenities for recreation was either somewhat or very negative;

62% felt the impact on local employment opportunities was somewhat or very negative;

60% felt the impact on local business and economy was somewhat or very negative. 59% regarded the impact on crime and justice as adverse 58% felt the impact on community safety was adverse 55% felt the impact on lifestyle was negative
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Far fewer respondents felt positive about the social impact of non-resident mining workforces on their local economy, infrastructure, employment and community wellbeing. The highest ranking perceptions about positive impacts were as follows:

26 % thought the impacts on local economy would be positive 23 % thought the impacts on the local liquor outlets would be positive 21% regarded the impacts on local employment opportunities as positive 14% thought the impacts on local amenities for recreation would be positive

Only :

11% regarded the impacts as having a positive impact on their lifestyle 10% regarded the impacts as positive for overall community wellbeing 9% were positive about the impact on local infrastructure 9% were positive about the impacts on housing and rental availability 7% were positive about impacts on community safety 6% were positive about impacts on crime and justice 6% were positive about the impacts on housing and rental affordability

Of particular originality and significance of the study is the finding that the majority of respondents (61%) supported new mining projects with an expected non-resident work force of 25% or less, but most (82%) opposed the development of new mining projects planning to recruit a non-resident work force in excess of 75%. These results confirm the study

hypothesis that the social license to develop new mining projects is strong for projects
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requiring a 25% or less non-resident workforce, diminishes significantly thereafter and is very weak for projects planning to recruit a non-resident workforce in excess of 75%. This finding is particularly significant in light of plans for at least 67 new resource extraction projects worth around $47 billion in capital expenditure destined to undergo social impact assessment in Queensland. The overwhelming majority of these new projects will be in the Bowen Basin of Central Queensland and many it appears will rely increasingly upon recruiting a non-resident supply of labour (McIntosh & Carrington 2011).

Discussion and Policy Implications Until the 1970s mining leases tended to be issued by governments subject to conditions that companies build or substantially finance local community infrastructure, including housing, streets, transport, schools, hospitals and recreation facilities (Hougton, 1993). Townships and communities went hand in hand with mining development. However, in the past thirty years, and under the growing influence of global economic forces, mining companies have moved progressively to an expeditionary strategy for natural resources extraction. This new regime of resource extraction operates a continuous production cycle involving 12 hour shifts alternating day and night with each roster cycle, and has become increasingly reliant on nonresident workers.

The economic returns for the resources industry are gargantuan. The resources sector is the largest contributor to Australia's export trade, and with a total value of $118.4 billion in 200809, the sector is growing at 15% per annum, with developers investing $174 billion associated with new resource projects (New et al., 2011). Global demand, especially from rapidly growing Asian economies, together with improved methods of extraction, processing and transportation and lucrative commodity prices, has fuelled this boom. The mining boom

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has also produced high incomes for resource sector workers, necessary to attract local and overseas labour in a tight market. Current economic returns for the mining corporations and their shareholders are staggering. In August 2011 BHP announced an annual net profit of $23.5 billion, earlier in the year Rio Tinto had announced an annual profit of $14.3 billion.

The National Resource Sector Employment taskforce has forecast a demand for 65,000 new jobs in mining and energy by 2015, an additional 45,000 in construction (National Resources Sector Employment Taskforce, (2011:1-3) and anticipated that the sector could be short of 36,000 tradespeople by 2015. In response the taskforce has recommended workforce planning projections including the proportion of resident and non-resident workers be included in project specifications at EIS stages to enhance workforce planning, training and skilling, government regional population, service and infrastructure planning.

The shortfall in resource sector workforce is critical and expected to be met largely through escalating the recruitment of non-resident workers housed in temporary accommodation. More flexible work arrangements are part of a larger global trend in the pattern of employment in a post-industrial world (Louis et al, 2006:456), more aptly described as global corporatism (Graham & Luke, 2011). Research into these increasingly precarious

employment conditions suggests they can adversely impact on worker health and well-being, occupational health and safety, union membership, job satisfaction, gender equity, and skills development (Louis et al., 2006: 466-67). The resources sector in Australia has been at the forefront of a trend to encourage the trading of rights, security and conditions for high wages. A longer term, more holistic view of the role of work in relation to well-being, personal identity, family and community is giving way to a narrower, shorter term focus on immediate economic benefits. According to Paul Cleary, the resource investment stampede is

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squandering Australias precious non-renewable fossil fuels and energy sources, at the expense of manufacturing and tourism industries and a more measured approach to harvesting resources in the long term interests of all Australians (Cleary, 2011).

Most mining sites and locations associated with the extraction, processing and movement of resources are in regional and remote areas of Australia. The impact of rapidly evolving mining industry regimes on the social ecology of regional mining communities is substantial as the results of this survey illustrate. So those who look hopefully on the mining boom to revive services, employment and community in rural communities may be disappointed (Carrington and Hogg, 2011). Insofar as new mines are being developed in or near existing communities it is typically the case, as the findings of this survey illustrate, that few of the benefits accrue to those communities but they are lumbered with a whole new set of burdens. The stretch on infrastructure, the erosion of community wellbeing, and the burden on local services soars along with housing costs and other local costs of living (Haslam McKenzie et al 2008; Rolfe, 2007); an ever-decreasing permanent resident workforce undermining economic diversification and long term sustainable community development (Gallegos, 2005). Fly-over effects threaten the continuing sustainability of some towns (Storey, 2001), fostering tensions between residents (insiders) and the non-resident workers (outsiders) some of which manifests itself as alcohol fuelled male on male violence (Carrington, et al 2010).. Residents of rural communities see themselves as having a long-term commitment to the community and as disproportionately bearing the social costs of resource developments, like many respondents to this survey obviously did. In addition to the sheer number of nonresident workers with little prospect of developing a meaningful commitment to place, the block roster system of 12-hour shifts can have profoundly disruptive effects on families and communities, of the kind highlighted by the qualitative responses. Where economic drivers

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subjugate all else, where a sense of local community based on dense patterns of acquaintanceship, participation in local sporting and other activities and high levels of implicit trust is seriously eroded, rural communities become less attractive places to live and enter into a spiral of rural crisis (Hogg and Carrington, 2006). While outside the scope of the survey, it is evident from other research that the accelerating trend to hire non-resident workers in the resources sector is likely to increase fatigue related car accidents and work injury, increase rates of staff turnover, reverse the trend of women entering the mining industry and adversely affect the wellbeing of non-resident workers and their families and add to local crime and safety problems (Murray and Peetz, 2010; Carrington et. al. 2010). The growth of non-resident labour housed in temporary accommodation is an integral feature of the contemporary mining boom and one set to soar in rural Australia. The projected cumulative social impact of this kind of mining development is anticipated to be substantially negative unless measures for mitigation are adequately planned, resourced and urgently addressed for the region as a whole.

Efforts to address the adverse effects have been limited, but still noteworthy. These include Queenslands social impact guidelines introduced in September 2010 and Major Resource Projects Housing Policy released 25 August 2011109, Western Australias Royalties for Regions program and the Australian Governments proposal for a Minerals Resource Rent Tax (MRRT) (Wayne Swan, PR, 1 June 2011). While the Qld Government Social Impact assessment process and Resource Projects Housing Policy are steps in the right direction, alone these policy instruments are insufficient to address cumulative social impacts of mining

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Under this new policy: The Queensland Government believes that resource workers should have a choice of where and how they live and work. Where a fly-in, fly-out workforce is proposed, the proponent must work with local communities, councils, unions and the state government to make sure that the liveability and sustainability of towns is protected and that workers have choice about where they live. (Qld Government, 2011:1)

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developments on whole regions over time. State governments who grant mining licenses also earn a share of the minerals extracted through royalties. Last year Qld and WA governments collected around $6 billion. State governments have a collision of self-interest with mining companies as both profit handsomely from the speedy extraction of resources. Hence there is no honest broker in this mix to make decisions about mining projects in the long term best interests and prosperity of the nation (See Cleary, 2011 for an extended analysis).

The present mining boom is producing huge economic benefits and is widely regarded as safeguarding Australias prosperity. This is the key to its unstoppable expansion. The uneven distribution of the benefits and burdens of the mining boom is a national social justice issue that has received too little attention. Even some within the industry question whether these regimes, especially those reliant on non-resident workforces, are sustainable in the long term110.Clearly there is a need for a national policy framework to guide the sustainable development of Australias resource stocks while at the same time harnessing some of the benefits and not just the burdens for rural communities. The Australian Labor Governments proposal for a mining super profits tax was initially driven by a desire to secure some of the wealth of the boom for future generations but a watered down version has left commentators wondering whether sufficient funds will generated by the tax for this purpose (Cleary 2011). Nevertheless, the 2011 budget strategy of leveraging off the resources boom to revitalise regional Australia gives some hope for optimism. Along with this strategy has come newly formed body, Regional Development Australia an Australian government initiative that brings together all levels of government in a shared responsibility model of federalism. Regional Development Australia (www.rda.gov.au) also appears to the one

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David Stewart, Chief Executive Leighton Holdings, commented on the accelerating trend toward fly in and fly out, or drive in drive out: Whilst this enables greater flexibility and access to skilled workers, it also places a great deal of extra stress on families and relationships. Looking more broadly it also puts a strain on local communities and in some cases is stifling regional development this is not sustainable in the long term. (Sydney Morning Herald, March 15, 2011, p. 8)

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agency with the potential to engage all key stakeholders in such consultations with a view to consensus building solutions, especially on infrastructure investment. A proportion of the proposed MRRT could even be one way of providing the critical investment so desperately needed in Australias mining communities. However unless this strategy is accompanied by a self-enlightened resources sector acting in concert with mining communities to maximize their social license to operate, one of the many escalating costs may be a continuing rise in burdens and other social harms among workers, families and communities adversely affected by the mining boom.

References Australian Broadcasting Corporation (ABC) (2006) Mining boom blamed for basin housing shortages. ABC News, 6 November. Retrieved 18 October 2010

fromwww.abc.net.au/news/stories/2006/11/06/1781965.htm Australian Bureau of Statistics (2006) Population by age and sex, Australia, 2006, cat. no. 3235.0.http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3218.0200809?OpenDocument Australian Bureau of Statistics (2008) Towns of the mineral boom (Cat. 4102), Australian Social Trends, Canberra, Australian Capital Territory: ABS. Australian Bureau of Statistics (2010) Regional population growth, Australia. Cat. No. 3218.0. http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3235.02006?OpenDocument Australian Bureau of Statistics (2011) Labour Force, Australia Cat No 6202.0 http://www.abs.gov.au/AUSSTATS/abs@.nsf/mf/6202.0

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Carrington K, Hogg R and McIntosh A (2011) The Resource booms underbelly: Criminological impacts of mining development. Australian and New Zealand Journal of Criminology. Carrington K and Hogg R (2011) Benefits and burdens of the mining boom for rural communities. Human Rights Defender. UNSW Law Faculty, Sydney. Carrington K, McIntosh A and Scott J (2010) Globalization, frontier masculinities and violence: Booze, blokes and brawls. British Journal of Criminology 50: 393-413. Cleary P (2011) Too much luck: The mining boom and Australias future. Black Inc. Department of Resources, Energy and Tourism (2008) Risk assessment and management: Leading practice sustainable development program for the mining industry. Canberra: Australian Government. Gallegos D (2005) Aeroplanes always come back: Fly-in fly-out employment: Managing the parenting transitions. Perth, Western Australia: Centre for Social and Community Research, Murdoch University. Graham P and Luke A (2011) Critical discourse analysis and political economy of communication: Understanding the new corporate order. Cultural Politics 7(1): 103-132. Haslam McKenzie F, Brereton D, Birdsall-Jones C, Phillips R and Rowley S (2008) A review of the contextual issues regarding housing dynamics in resource boom towns. AHURI Positioning Paper No. 105. Perth, Western Australia: Australian Housing and Urban Research Institute. Hogg R and Carrington K (2006) Policing the rural crisis. Sydney: Federation Press.

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Houghton D S (1993) Long-distance commuting: A aew approach to mining in Australia. The Geographical Journal 159(3): 281-290. Louis A, Ostry A, Quinlan M, Keegel T, Shoveller J and LaMontangne A (2006) Empirical study of employment arrangements and precariousness in Australia. Relations Industrielles Summer 2006: 61, 3. McIntosh A and Carrington K (2011) Mining projects in rural settings: Some measures of the demographic mix. Institute of Australian Geographers Conference, University of Wollongong, 3-6 July 2011. Murray G and Peetz D R (2010) Women of the coal rushes. Sydney: University of New South Wales Press. National Resources Sector Taskforce (2011) Resourcing the future. Canberra: Department of Education, Employment and Workplace Relations, www.deewr.gov.au/Skills/Programs/National/nrset New R, Ball A, Copeland A et al. (2011) Minerals and energy, major development projects April 2011 listing. Canberra: Australian Bureau of Agriculture and Resource Economic and Sciences (ABARES). Office of Economic and Statistical Research (2010a) Workforce analysis of the Bowen Basin, 2010. Brisbane: Office of Economic and Statistical Research. Office of Economic and Statistical Research (2010b) Demographic analysis of the Bowen Basin, 2010. Brisbane: Office of Economic and Statistical Research. Queensland Department of Infrastructure and Planning (QDIP) (2008a) Queenslands future population, 2008 edition. Brisbane: QDIP.
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Queensland Department of Infrastructure and Planning (QDIP) (2008b) Resource community summits, November 2008, final report. Brisbane: QDIP. Queensland Department of Infrastructure and Planning (QDIP) (2010) Social impact assessment. Brisbane:: QDIP. Retrieved 2 October 2010 from

http://www.dip.qld.gov.au/simp/ Robertson M (2010) Affordable housing in the boom. Parity 23(6): 64-66. Rolfe J, Petkova V, Lockie S and Ivanova G (2007) Mining impacts and the development of the Moranbah Township (Research Report no 7). Mackay: Centre for Environmental Management, CQU. Rolfe J, Ivanova G and Lockie S (2006) Assessing the social and economic impacts of coal mining on communities in the Bowen Basin, summary and recommendations. Mackay: Centre for Environmental Management, CQU. Rolfe J, Miles B, Lockie S and Ivanova G (2007) Lessons from the social and economic impacts of the mining boom in the Bowen Basin 2004 2006. Australasian Journal of Regional Studies 13(2): 134-153. Storey K (2001) Fly-in/fly-out and fly-over: Mining and regional development in Western Australia. Australian Geographer 32(2): 133-148. Swan W (2011) Exposure draft Minerals Resource Rent Tax. Press Release, 1 June 2011.

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Inside the Preventive State Tamara Tulich Faculty of Law, University of New South Wales, Sydney Email Address

Conference sub-theme: Social Justice, Governance and Ethics

Abstract The rise of prevention and pre-emption in the governance of crime and deviance signifies a shift in emphasis of criminal justice policy and practice, from the traditional retrospective orientation of reacting and responding to harm, to a prospective focus upon intervention and aversion of harm. This shift is particularly evident in anti-terror measures, such as the criminalisation of preparatory acts, and the introduction of control orders. Of significant concern is how prevention and pre-emption may compound social exclusion through the criminal justice system, particularly as scant consideration has been given to the scope and limits of this shift in governance.

This paper presents a framework to conceptualise this prospective shift in governance, and to enable articulation of the scope and limits of preventive and pre-emptive action. The framework draws upon three key perspectives: the theory of risk and modernity of Ulrich Beck, the conceptual model of the preventive state, and the analytical tools of Foucaults governmentality thesis. This paper will provide a mechanism for viewing prevention and preemption in law and governance, which will enable comparison of preventive measures that impact on marginalised and excluded members of society, such as the mentally ill, serious sex offenders, and terrorist suspects.
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In the decade following September 11, 2001, a central preoccupation of the Australian government has been how to anticipate and thwart a terrorist attack before it occurs. This key policy objective of prevention has led to novel legislative developments that stretch the boundaries of the criminal law, and evade or erode protections within the criminal justice system. These measures permit the state to preventively restrain an individuals liberty on the basis of an anticipated future harm. This is in stark contrast to the traditional retrospective orientation of the criminal justice system where the state reacts and responds to harm that has occurred, such as by investigating and punishing criminal acts. However, these preventive measures are not unprecedented. The state has long employed strategies to control future conduct by restricting an individuals liberty, for example in relation to breaches of the peace, apprehended violence orders and the mentally ill. This raises the question of whether there is anything new or different about the operation of preventive anti-terror laws, and what we might learn from examining continuities and discontinuities between preventive measures.

In this paper, I will argue that to begin analyzing whether anti-terror laws are new or different in form or operation, a framework is required that provides clarity regarding the terms and concepts employed to describe this type of anticipatory state action, and a method to view these laws in operation. This paper will present a framework that draws upon the theory of risk and modernity of Ulrich Beck, the conceptual model of the Preventive State, and the analytical tools of Foucaults governmentality thesis. This framework provides one way to view prevention and pre-emption in law and governance which may have broader implications for investigating preventive measures that impact on marginalised and excluded members of society.

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An Outline of the Framework: the Rise of the Preventive State We can understand the rise of prevention (loosely defined as state interventions that target an identified threat before it eventuates) and pre-emption (broadly describing state interventions to target threats before they emerge (McCulloch and Pickering, 2010, p. 15-17) as part of a broader transformation of governance and society in the 21st century. In his influential account of this process, the Risk Society, Sociologist Ulrich Beck argues that risk has replaced wealth as the central organising principle of late modernity, and the key dilemma facing the Risk Society is the prevention or management of risk (Beck, 1992). One of the ways in which governance has been transformed is the movement from the reactive, or punitive, state, where the state intervenes after harm occurs, to the preventive state, in which the state seeks to intervene before harm occurs (Dershowitz, 2009, Steiker, 1998). In Australia, this shift is evident in relation to anti-terror laws, and also post sentence detention or restriction of liberty of serious sex offenders.

As such, the rise of the Preventive State can be understood as a function of the recent overdevelopment of the states function to protect its citizens from harm (Ashworth and Zedner, 2008). This function is not new; Blackstone spoke of preventive justice at the turn of the 19th Century, and we can trace the Office of Justice of the Peace to the time of Richard I in the 12th Century (Dershowitz, 2006, p. 43). The power of a Justice of the Peace to prevent breaches of the peace extended to incarcerating an individual who was suspected might commit a harmful or criminal act (Dershowitz, 2006, p. 50). What is new is the overdevelopment of this preventive function (Ashworth and Zedner, 2008), and the rapid pace at which it has grown. Australias anti-terror policy provides a good example of the recent emphasis placed on the function of the government to protect its citizens and prevent harm: (Department of Prime Minister and Cabinet, 2010, Ruddock, 2007). Much of Australias anti-

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terror legislation now comprising some 46 laws enacted at a blithering pace in the years following 9/11 were enacted in furtherance of this policy objective (Williams, 2010, Ruddock, 2007).

More broadly, the Preventive State serves as an umbrella concept to describe and encompass state action which seeks to anticipate and avert or minimise harm. It is possible to distil key features of law and governance of the Preventive State: its preventive rather than punitive nature, and its future orientation, that is, an attempt to govern the future by intervening to preventively restrain an individuals liberty in the present. (Ashworth and Zedner, 2008, p. 21). Future law, (Ashworth and Zedner, 2008, p. 42) and Future Governance (Crawford, 2009, p. 819) are in vogue descriptions of this attempt to govern the future by imposing restrictions on the liberty of a person in the present. In contrast to the criminal justice system, future governance permits the state to intervene and restrict a persons liberty to avert an anticipated future harm. This intervention is permitted on the basis of a lower threshold of knowledge, such as suspicion, and at points in time well before, and indeed well after, that which is traditionally accepted in the criminal justice system. A contemporary example of future law is the power of police to preventively detain a person police suspect, on reasonable grounds, will engage in a terrorist act, prior to a terrorist act occurring (The Criminal Code Act 1995 (Cth) 'Criminal Code', s. 105.4).

The future orientation also gives rise to new modes of governance; such as the bid to control future behaviour through strategies of self-governance(Ashworth and Zedner, 2008, p. 41). This is what Adam Crawford terms contractual governance or regulated self-regulation, which he argues represents a shift in regulatory style and the mode by which individuals are increasingly governed (Crawford, 2003, p. 487). Contractual governance may be explained

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as a way the state can control the future behaviour of an individual through a contractual arrangement made in the present, such as a control order.

Many Australian examples of contractual governance are also hybrid orders; that is, orders that are civil in nature, yet attract criminal penalty on breach. This is true of anti-terror and serious organised crime control orders (available, for instance, in NSW pursuant to Crimes (Criminal Organisations) Control Act 2009 (NSW)), and extended supervision orders in respect of serious sex offenders (such as is available in NSW pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) ). These orders are said to be self-regulating based on the assumption is that an individual subject to an order will, acting rationally in his or her self interest, voluntarily comply with the order that is, self police - so as not to incur the consequences of breach.

Inside the Preventive State A limitation of the Preventive State model is that it does not provide a means to analyse or critique what action is being taken within it, what consequences this has and why. It is here that the governmentality perspective has much to offer; it provides the analytical tools to step Inside the Preventive State.

The governmentality perspective derives from Foucaults lectures at the Collge de France in 1978 (Foucault, 2007). The relevant meaning of governmentality for present purposes is an inquiry into the art of government; that is, into the craft of governing - the complex practices, institutions, procedures, and programmes through which we govern and are governed (Foucault, 2007, p. 108, Dean, 2010, p. 27-28). This form of analysis, then, entails identifying:

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these different styles of thought, their conditions of formation, the principles and knowldeges that they borrow from and generate, the practices they consist of, how they are carried out, their contestations and alliances with other arts of governing (Rose et al., 2006, p. 83)

This governmentality approach stems from Anglophonic governmentality scholarship. What is common to the Anglophonic approaches is the analytical perspective; what has been referred to as a: research perspective in the literal sense: an angle of view, a manner of looking, a specific orientation into the art of government, rather than a prescribed and distinct methodological inventory: (Brckling et al., 2011, p. 11).

Adopting a governmentality lens, the Preventative State serves as a mechanism for viewing the institutions, practices and personnel of government, and organising them in relation to a specific ideal of government, prevention from future harm. Our starting point is the particular activity of the Australian government in attempting to intervene to prevent harm occurring, such as a terrorist attack. The state intervenes by controlling the behaviour of an individual in the present either by deprivation or restriction of liberty; for example, by the issuance of a control order. The rationality guiding this governmental action is the precautionary principle; it is the particular logic, style of thought or way of reasoning that governs or influences the operation of future governance inside the Preventive State. The practices that direct conduct as part of this rationality include, for example, the anti-terror legislative framework, and are seen through the techniques of prevention and pre-emption.

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The Precautionary Principle Lets begin with the rationality. Many commentators have observed a new precautionary logic governing how we think and act, individually and collectively through governments, in the 21st century (see, for instance, Ericson, 2007, Zedner, 2009). Furedi, for example, maps a shift from probabilistic to possibilistic thinking and risk management; the rise of the latter, he argues, is the distinctive feature of 21st-century lifestyle(Furedi, 2009, p. 197). When applied to security policies, this mode of thinking is identified as an application of the precautionary principle to terrorism (Furedi, 2009, p. 197).

The precautionary principle has been the subject of much commentary, yet its precise content is not settled (Ewald, 1999 , Sunstein, 2005). Nonetheless, the animating idea behind all versions of the principle is that regulators should take steps to protect against potential harms, even if causal chains are unclear and even if we do not know that those harms will come to fruition(Sunstein, 2005, p. 4). The principle, although initially invoked in the context of environmental regulation and in relation to catastrophic and irreversible harms, has seeped to international law, risk regulation and security studies. What has occurred in the anti-terror context is the relaxation or watering down of the harm requirement: state intervention now occurs where harms are of lesser severity than catastrophic and irreversible (Zedner, 2009, p. 84).

Prevention and Pre-emption The practices that direct conduct as part of this rationality are seen through the techniques of prevention and pre-emption. By identifying and examining these two techniques we can start viewing, and importantly comparing, how the law operates inside the Preventive State. While sharing a precautionary logic, prevention and pre-emption are conceptually distinct and can

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be distinguished based on the point at which they permit intervention by the state, and the level of knowledge or belief required to found the intervention.

The work of Canadian philosopher Brian Massumi on the distinction between prevention and pre-emption in International Relations provides key insights for distinguishing between these concepts in domestic legislation (Massumi, 2007). Massumi argues that what links prevention and pre-emption is a shared goal of neutralising threat, yet they differ, crucially for present purposes, in terms of epistemology (that is, knowledge premise). Prevention achieves neutralisation of threat by developing the capability to prevent a threat. This assumes the ability to empirically assess a threat, identify its causes and adopt a method to neutralise it (Massumi, 2007, para. 5). The epistemological premise of prevention is that the world is objectively knowable; uncertainty is a function of lack of information and the trajectory of an event is predictable and linear from cause to effect (Massumi, 2007, para. 5).

For Massumi, pre-emption also operates in the present on a future threat, (Massumi, 2007, para. 13), but it does so with a vastly different knowledge. It does so in circumstances of uncertainty. Here, uncertainty does not result from a lack of information, but rather because the threat has not emerged. The threat is indeterminate; neither the threat nor the enemy can be specified (Massumi, 2007, para. 13). Uncertainty about the nature of the threat is insurmountable, and the potential nature of threats gives rise to potential politics and the subjunctive; could have, if, would have (Massumi, 2007, para. 17).

Significantly, what can be drawn from Massumis work and applied to an analysis of the Preventive State is the distinction between prevention and pre-emption in terms of the timing of intervention and the level of knowledge upon which intervention is based. Both pre-

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emption and prevention are a composite of prediction and intervention. Prediction draws attention to the status of knowledge, and intervention to how strategies of prevention and preemption are conceived (Freeman, 1992). Pre-emption rests on the knowledge premise that the future is incalculable, and is organised around uncertainty. Intervention occurs when a threat of harm is emergent but not determinate. This translates, for example, into intervention not only prior to harm occurring, or the commission of a criminal act, but also prior to the formation of clear criminal intent (Ericson, 2007, MacDonald and Williams, 2007). Because pre-emption permits interventions that are so far removed from the anticipated harm, the mental state, or level of knowledge, upon which intervention is based can only be suspicion (Ericson, 2007). Australias control order regime is a prime example; a senior AFP officer, in obtaining consent of the Attorney General to request an interim control order, must either consider on reasonable grounds that the order would substantially assist in preventing a terrorist act or suspect on reasonable ground that the person has provided or received training from a listed terrorist organisation (s. 104.2, Criminal Code). Importantly, pre-emption licences action on the basis of intelligence and threat assessments, and this raises questions, for example, about the use of intelligence as evidence within the criminal justice system.

Prevention, on the other hand, provides a framework for a decision maker to assess the likelihood and degree of a threat before taking action (Zedner, 2008, p. 46). Prediction is the basis upon which the action is taken, and it relates to the possibility of assessing with accuracy and objectivity the risk an individual poses. In this way, it presumes that the future is calculable, a premise underlying risk assessments (Zedner, 2008). Risk also serves as the logic or justification for intervention (Zedner, 2008). Before a state may intervene, the threshold issue is whether the decision maker believes on reasonable grounds that the person

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has or is likely to commit an offence. An example of this is the power of constables to issue warrants without arrest under s 3A of the Crimes Act 1914 (Cth).

This distinction may be drawn out in the following examples:

The offence of engaging in a terrorist act, under s101.1 of the Criminal Code, is an example of the punitive state, and the traditional, retrospective orientation of criminal justice system. The state intervenes after the act occurs, and therefore after criminal intention is formed;

The inchoate offence of attempting to engage in a terrorist attack under ss11.1 and 101.1 of the Criminal Code is an example of prevention. The state intervenes before the crime occurs but after there have been acts more than merely preparatory to the offence. This is the threshold at which the risk or likelihood of the offence justified intervention, and criminal intention (to engage in a terrorist attack) arises; and

The preparatory or ancillary offence of doing an act in preparation for, or planning, a terrorist attack under s106.1 of the Criminal Code is an example of pre-emption. The state intervenes before the crime occurs and before the commission of acts more than merely preparatory to the offence, where the threat of harm is emergent but not determinate. This is also before the formation of clear criminal intent (MacDonald and Williams, 2007, p. 34).

A Distinction Without Difference? Implications of the Framework The recent emphasis on prevention in anti-terror law is neither unique nor unprecedented. The rapid development of this preventive anti-terror regime does raise important questions about how we govern and are governed. It may be understood as part of a broader shift in
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governance that has significant implications for how we view and govern deviance, and for what we regard as the acceptable limits of state preventive action. What this framework provides is a mechanism to view this broader shift in governance, and a lens to examine its operation. One implication is that it may begin to provide content and clarity to the terms and concepts employed to describe anticipatory state action so as to enable meaningful analysis. One of the challenges in the literature and political discourse that has emerged following September 11 is a lack of clarity and inconsistent application of terminology employed. Mariana Valverde expressed it well when she recently reported that [t]he term security is now doing a great deal of work in a wide variety of fields (Valverde, 2011, p. 4). Similarly, prevention, pre-emption and precaution are doing a great deal of work in many disciplines.

It should be noted that criticisms have been levied at the use of the term prevention in the anti-terror context. McCulloch and Pickering have argued that it is inappropriate to employ the term prevention in this context as it distorts how the term is employed and theorised in criminology, assumes a connection to outcome and masks ulterior motivations (McCulloch and Pickering, 2010, p. 15-17). Similarly, Zedner challenges the appropriateness of prevention in the context of control orders as underlying prevention is an assumption that it is possible to accurately assess the risk posed by an individual, and to design measures that are effective in averting that risk (Zedner, 2007a, p. 191 - 203). These authors raise important criticisms that may be mediated by clearly defining and providing content to prevention and pre-emption. Carefully mapping of these concepts may also go some way to alleviating the lack of clarity and consistency in the concepts and terms employed to explain and describe anticipatory action taken by governments, and to provide a deeper examination (see, for example, Whitehall's criticism of Dershowitz's account of pre-emption: Whitehall, 2010).

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This framework presented is still developing. However, what it provides is a first step in conceptualising this shift in governance and drawing connections and discontinuities between the diverse set of preventive measures in Australia. Attention has rightly focused on the scale and pace of the enactment of Australias anti-terror laws and how these measures have realigned our legal system through the extensive powers they grant to government and their impact on basic freedoms (Lynch and Williams, 2006, pp. 85-86). Yet these measures are not unique; examples of future governance include post-sentence interventions in relation to serious sex offenders, control orders in organised crime legislation and diversionary or therapeutic interventions such as involuntary detention of persons found to be suffering from mental illness. The preventive push in anti-terror law forms part of a broader shift in governance that has implications for civil liberties and the regulation of deviance that warrant further research.

Of concern is how prevention and pre-emption may compound social exclusion through the criminal justice system, as these measures predominantly affect marginalised and excluded members of society, such as the mentally ill, serious sex offenders, and terrorist suspects. Of the 38 persons charged with terrorism related offences in Australia, the overwhelming majority have been Muslim men and all but one of the proscribed terrorist organisations under Div. 104 of the Criminal Code (1995 ) have been Muslim groups (McGarrity, 2010, p. 117, Attorney-General Hon. Robert McClelland MP, 2011). Moreover, the civil liberties concerns raised by international commentators on the dangers of blindness to the limits of the Preventive State (Dershowitz, 2009, Zedner, 2008, Zedner, 2007b, Zedner, 2007a, Ashworth and Zedner, 2008) are amplified in the Australian context, where reliance cannot be placed on a federal bill of rights (Lynch and Williams, 2006, Williams, 2010).

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Indeed, one of the principal justification for adopting and pursuing the Preventive State model is normative; drawing connections between the diverse set of preventive measures may avoid dangers discovered in one measure being blindly reproduced in another (Zedner, 2007a, p. 189). Additionally, the Preventive State model has the potential to encourage and focus debate on this shift in governance and, importantly, on its scope and limits and the principles and values that should guide it (Zedner, 2007a, p. 190). Drawing connections and discontinuities between preventive measures is a critical step in engendering a broader preventive jurisprudence; the lack of which Steiker argued resulted in blindness to the limits of Preventive State action in the USA. A further implication of collecting and analysing preventive measures is that it brings those suspected of, or charged with, terrorism related offences into the fold of the traditional deviances. This may draw attention to and promote investigation of the broader issues of exclusion that inhere in this shift in governance.

The question of the limits of the Preventive State is reinforced by the normalisation and modelling of anti-terror laws (McGarrity and Williams, 2010, Appleby and Williams, 2010, Lynch, 2009). This framework may also provide a useful vehicle for further investigation into whether preventive and pre-emptive measures lead to material differences in operation of the criminal justice system, and whether insights may be drawn by comparing the diverse set of preventive measures.

Conclusion This paper has sought to touch on the broader implications of the rise of prevention and preemption, particularly as part of Australias anti-terrorism framework. The starting point for examining the diverse collection of preventive measures and investigating the significance of this shift in governance is by adopting the conceptual model of the Preventive State. It is by

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stepping Inside the Preventive State and engaging a governmentality perspective that we can begin to view prevention and pre-emption in law and governance. Drawing connections and discontinuities between preventive measures is a critical step in engendering a broader preventive jurisprudence, through which the scope and limits of the preventive state may be considered and articulated. This may open up investigation of further issues such as the impact of the Preventive State on the criminal justice system and how prevention and preemption may contribute to social exclusion through the criminal justice system.

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Courts, Law and Social Democracy

Courts and Social Change: Women in the Australian Judiciary*

Corresponding author: Sharyn Roach Anleu School of Social & Policy Studies, Flinders University, South Australia.

GPO Box 2100, ADELAIDE, SA 5001, Australia. Email: Judicial.research@flinders.edu.au

Kathy Mack School of Law, Flinders University, South Australia.

Conference sub-theme: Courts, Law and Social Democracy

Abstract Courts and the judiciary have undergone a number of changes, in part related to developments and innovations in their broader environments. Possible connections between social change and courts are subject to much discussion and theorisation, but little empirical investigation. One of the most visible and perhaps significant changes is the composition of the judiciary, with increasing numbers of women as judicial officers at all levels of the court hierarchy. What has actually changed? How do these changes relate to different social, political and cultural contexts? What are some of the meanings for the courts and the public they serve? These questions will be addressed drawing on data from the Judicial Research Project at Flinders University, which has conducted extensive empirical research into the attitudes, perceptions and everyday work of the Australian judiciary over the past 10 years, using a mix of research strategies. This empirical socio-legal research gives needed attention
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to the social, experiential and affective dimensions of judicial work and its connections with changing social, political and cultural contexts.

Introduction Courts and judges are essential for the administration and symbolization of justice in developed, developing and transition countries (Messick, 1999, Rock, 1998). Courts and the judiciary have themselves undergone a number of changes, in part related to developments and innovations in their broader environments (Roach Anleu, 2010). Changes affecting courts as institutions include greater managerial accountability, the rise of informal and nonadversarial processes and increased expectations of addressing social problems (Alford et al., 2004, Freiberg, 2001, Parker, 1998, Travers, 2007). Changes to judging include reduced emphasis on passive adjudication, more active case management (Heydebrand and Seron, 1990), greater emphasis on professional development, the deployment of newer forms of judging (Bartels, 2009, Farole et al., 2005, Freiberg, 2007, King et al., 2009) and recently some formalisation of judicial appointments processes (e.g. the Judicial Appointments Board [Scotland, established in 2002], and the Judicial Appointments Commission [England and Wales, established in 2003]). The magistracy in Australia has become professionalised (Mack and Roach Anleu, 2006, Roach Anleu and Mack, 2008). There is more concern about public confidence regarding courts and judges, especially in relation to sentencing decisions (Gelb, 2008).

One of the most visible and perhaps significant changes is in the composition of the judiciary with increasing numbers of women as judicial officers in all levels of the court hierarchy. Womens entry to the legal profession has been followed by judicial appointment, but there are considerable time lags. The proportions of women judges remain small, especially in the

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superior courts.

The trickle-up effect is limited (Malleson, 1999, 2006).

Courts and

governments have been criticised widely for their role in the exclusion of women from public office and the casting of judging as an essentially male capacity (Schultz and Shaw, 2003, Thornton, 2007). Such a gendered institution jeopardises its own claims of neutrality and impartiality (Malleson, 2003). Increasing judicial diversity is necessary in order to maintain public confidence and trust, that is to ensure the legitimacy of the judiciary as a whole (Rackley, 2002: 609). More recent discourse about appointment to judicial office relies on arguments about fairness and equal employment opportunity (Kenney, 2004).

Generally, in Australia there is no legally mandated process of seeking application for judicial office or measuring candidates against formal criteria (Mack and Roach Anleu, 2010). Empirical research suggests that flows of information through personal, old-boy networks and secrecy about the judicial appointment process tends to privilege (some) men and disadvantage (many) women (Feenan, 2005, 2007).

The numbers and proportions of women in the Australian judiciary have grown slowly over the past decade. In 2000 women constituted 17% of all judicial officers, by 2011 this proportion was 33%. However, the increase is not the same at all levels of court. In 2011, women constitute over one third (38%) of magistrates in Australia, over one in four (29%) of district/county court judges and almost one in four (24%) supreme court justices (http://www.aija.org.au/gender-statistics.html <accessed 25 May 2011>; Mack and Roach Anleu, 2010). This pattern is similar across the judicial world, and is similar to womens entry into other male-dominated occupations and professions, including law (Center for Women in Government & Civil Society, 2011, Schultz and Shaw, 2003, Thomas, 2005, Thornton, 1996, 2007, Williams and Thames, 2008). The judiciary remains a male

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dominated institution in many respects, both numerically and in terms of occupational culture and practices. Even so, the direct association of masculinity, or different types of masculinity, with judicial office and judging is no longer taken for granted (Collier, 2010). It is timely to ask:

What has actually changed? How do these changes relate to different social, political and cultural contexts? What are some of the meanings for the courts and the public they serve?

The Judicial Research Project has conducted extensive empirical research into the attitudes, perceptions and everyday work of the Australian judiciary over the past 10 years, using a mix of quantitative and qualitative research strategies. It empirically investigates the ways in which womens and mens entry into the judiciary and their experiences of judging and judicial work might differ. Here judging and judicial office are not conceptualised as a mystical status, but as a form of employment, albeit very different from most other occupations (because of judicial independence and security of tenure).

There is growing international interest in the comparatively recent socio-legal terrain of empirical research into judges and judging (Moorhead and Cowan, 2007: 315). New

developments emphasise empirical social research focussing on judicial officers themselves, as distinct from the courts as institutions, and relies on data directly collected from judicial officers, rather than relying on products of court activity such as reported judgements or quantitative data on decision making patterns.

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A substantial body of research and commentary considers whether women judges will make a difference to decision-making, styles of judging and reasoning and judicial culture (Schultz and Shaw, 2008). Initial expectations that women would make a difference to the judiciary (and other male-dominated occupations) have been criticised for being essentialist and ignoring the diversity of women (and men), for equating female with feminist and for not being empirically supported (Malleson, 2003). Data from two surveys (one of judges, one of magistrates) in 2007 provides information on the extent to which the increasing numbers and proportions of women judicial officers might impact on the relationship between evolving juristic institutions and changing social, political and cultural worldviews.

What Has Actually Changed? Gender diversity has not necessarily been paralleled by diversity in other dimensions. Greater numbers of women in the judiciary, at least in Australia, does not appear to increase diversity in terms of class, ethnicity, religion or regional background. The personal and social differences between magistrates and judges or between men and women lie within a narrow band, and should not be exaggerated (Rhode, 2003: 5). Most men and women in the Australian judiciary describe themselves as of Australian or British ancestry. Nearly all these women and men women spent their childhoods in Australia and had fathers in full time paid work. Most are married or partnered, with at least one child. On average women are younger (52) than the men (59). The largest differential is between female magistrates (50) and male judges (61). The only social background characteristic that differs markedly is mothers participation in paid work when the respondent was growing up. Over a quarter of women magistrates (29%) and judges (28%) report that their mother was always or almost always in paid work when they were growing up, compared with less than a fifth of the men (18% male magistrates, 13% of male judges).

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Men and women judicial officers also appear to have different family structures and household responsibilities. A lower proportion of women are married or partnered (80% of women compared with 93% men), and two thirds of these women judicial officers report that their spouse/partner is currently in paid, full-time work, compared with only one-fifth (20%) of their male counterparts. On average men have more children than women, and their children are older.

How do These Changes Relate to Different Social, Political and Cultural Contexts? Social science research has documented widespread social, economic, cultural and policy changes continuing since the last quarter of the 20th century (Roach Anleu, 2010). Such changes include labour market transformations, increasing employment insecurity, declining real wages, financial crises, ageing populations and declining fertility as well as reductions in public welfare provision and privatization. There is also greater geographic mobility and rapid advances in electronic communications. Courts necessarily confront these changes which impact on their daily work (Roach Anleu and Mack 2007). Courts are a vital

institution where social issues and legal authority intersect and where judicial officers have the capacity and opportunity to contribute to progressive social change in a local, personal, and incremental way (Roach Anleu and Mack 2007: 184; also see Cowan et al 2006).

One way of thinking about courts and their external environments is to consider judicial officers orientation to change, which might suggest some awareness of, or commitment to understanding, different social, political and cultural contexts.

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Regardless of level of court, higher proportions of women (80%) than men (63%) identify value to society as important or very important to their decision to take on judicial office. This finding might suggest that these women adopt a wider view of the relationship of law, courts and society and of their role as judicial officers. The pattern for desire to improve the court system, is similar: almost half of the women (49%) compared with a third of the men (36%) indicate this was a very important or important consideration in their decision to become a judicial officer. This is particularly the case for female magistrates. Overall, men and women, judges and magistrates express high levels of overall job satisfaction, and consider their work important to the community, though slightly more women, especially in the magistracy, are disappointed with scope for improving the court system, compared with their male colleagues.

These findings indicate that women, especially in the magistracy, have a stronger orientation to change than their male counterparts. This should not be overstated, as womens

commitment to the impartiality of the judicial role remains very strong, and the same as their male colleagues at both levels of court (Mack and Roach Anleu, 2010).

What are Some of the Meanings for the Courts and the Public they Serve? This section considers two aspects: whether women and men value different skills and qualities related to the everyday work of a judicial officer, and whether women and men experience the work/family time pressures reported in other occupations and professions.

Do Men and Women Value Different Skills? The most important type or category of qualities is what could be called legal or judicial values. Judges and magistrates (no gender difference) overwhelmingly agree that

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impartiality, integrity and a sense of fairness are central in the performance of daily tasks, more so than any other kinds of qualities or skills. Nearly all respondents identify integrity/high ethical standards (99%), impartiality (99%), and a sense of fairness (95%) as essential or very important to their everyday work.

In recent years, there has been much discussion about new approaches to judging that depart from the traditional conception of the passive, detached judge in the adversary system (Moorhead and Cowan, 2007, Roach Anleu, 2010). These changes are the most salient in the lower courts. New developments in the criminal jurisdiction include problem oriented courts, restorative justice and therapeutic jurisprudence. On the civil side, there is greater emphasis on judicial case management and ADR, even including judicial mediation, especially in the higher courts (Mack, 2003). These developments presuppose a more active role for the judge and direct engagement with the parties, including criminal defendants. Newer forms of judging may entail greater reliance on qualities such as communication, listening, empathy and an awareness of the defendants personal/social needs, compared with more conventional legal (or judicial) skills such as legal reasoning or legal knowledge.

Judges and magistrates, men and women, place high importance on communication, being a good listener, courtesy and patience, though women are somewhat more emphatic in their assessments than their male counterparts. Larger proportions of women assess these skills as essential while larger proportions of men consider them very important.

Differences exist between men and women, judges and magistrates with regard to managing the emotions of court users, compassion and empathy. Women magistrates, more than any other cohort, value managing the emotions of court users as a skill in their daily work. For

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two-fifths of women magistrates (41%) managing these emotions is an essential skill, compared with less than one fifth of their male colleagues (17%) and of judges in the higher courts (men [16%] and women [20%] alike). A similar pattern emerges in relation to compassion and empathy, with greater proportions of women magistrates valuing these qualities as essential, followed by their male counterparts. These qualities are valued

somewhat less by judges than by magistrates with no differences between men and women judges. It might be expected that daily life in the magistrates court entails more emotions than in higher courts, especially if defendants or litigants do not have legal representation, and that some women magistrates may bring greater awareness of the value of emotional labour to their work (Roach Anleu and Mack, 2005).

Work/Family Time Pressures Long working hours, limited workplace flexibility and conflict between domestic demands and expectations of open-ended availability for clients all constrain womens careers in the legal profession (Edwards, 2011, Epstein et al., 1999, Heinz et al., 2005, Seron, 2007, Sommerlad, 1994, Webley and Duff, 2007). Judicial appointment may be an attractive career option or possibility for women.

Around half of men (48%) and women (52%) identify compatibility with family responsibilities as important or very important in their reasons for entering the judiciary. Hours was an important (including very important) factor for half (50%) of women judicial officers in becoming a judge/magistrate, compared with just over a third of the men (36%).

While most judicial officers -- men and women -- report satisfaction with their hours and the compatibility of their jobs with family responsibilities, the majorities of men are larger than

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of women. Four-fifths (79%) of the men and two-thirds (65%) of the women are satisfied with hours. Similarly, 79% of men and 64% of women are satisfied regarding the

compatibility of work with family responsibilities. These groups overlap: 78% of men and 63% of women are very satisfied/satisfied with both hours and the compatibility with family responsibilities.

A female magistrate, for whom hours was an important consideration in her initial decision to become a magistrate and is satisfied with the compatibility between work and family

responsibilities, indicates some disappointment with those hours. They seem to deviate from her perceptions of the magistracy as a family-friendly work environment (at least compared with legal practice, and in particular, her previous work as a barrister):

It is a pretty interesting job, and one I chose so I could have children; though is very demanding because is not family friendly. Limited recreation leave; cant work part-time or job share; limited support to take time off to attend a school function (because Im not in a metropolitan court). Having to be in court every day is totally grinding! (Emphases in original).

While work in court, particularly presiding at trial, is the most publicly visible part of a judicial officers work, and often a proxy for time at work, many tasks and activities related to core judicial work take place outside of the courtroom. Half of all judicial officers, men and women, report working outside regular work hours every day (before 9 am and after 5 pm Monday to Friday), around a quarter do so a few times a week, and the other quarter do so once a week or less. Court hierarchy makes a difference to the frequency of out of court

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work: Almost two-thirds of judges (male and female), report after hours work every day, compared with about one-third of magistrates, male or female.

Women judicial officers report feeling rushed far more often than their male colleagues. Almost half (47%) women judicial officers report always feeling rushed, compared with less than one fifth (17%) of the men. Very few women report rarely feeling rushed: only one female magistrate and only three female judges indicate this experience, whereas one in seven (15%) men report rarely feeling rushed. Two-thirds of the men (67%) and half of the women (51%) report sometimes feeling rushed.

Approximately half of the women (49%) and the men (54%) report spending between 5 and 14 hours on domestic work. One third of the women judicial officers (32%), but less than one in ten (8%) of their male counterparts, reports spending more than 15 hours per week on this unpaid work. In contrast, over one third (36%) of the men, compared with only one in five (20%) of the women, report undertaking less than five hours per week on unpaid domestic work.

Other findings from the survey suggest that gendered patterns of domestic life hold within the Australian judiciary. Women in the judiciary still undertake conventionally women's

household work, while the household work of men judicial officers is usually done by his wife or partner (nearly always female). Womens high status occupation as judge or

magistrate and high salary do not significantly reduce their domestic load, and certainly not to the same levels as their male colleagues. This is the case even when comparing men and women in the judiciary in similar circumstances, ie spouses in full-time paid work and children under 18 years.

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The time demands of judicial work mean that many tasks, such as keeping up with the law and judgement writing, seep into non-work time. Male judicial officers have more

unbracketed time commitment (Seron and Ferris, 1995: 41) and greater temporal autonomy than their female counterparts. The traditional view of the judge as male with few family obligations persists in court cultures, despite the increasing numbers of women judges (cf Thornton, 1996). A female judge with children over 18 and a spouse in paid part time employment describes the tension between work expectations and non-work obligations:

A very strong male work culture continues to operate within courts.

This

contributes to inflexibility in work practices. It also creates an environment in which judges seeking different listing arrangements to allow time to write judgments & sentences (other than at night or weekends or during leave) are viewed as less capable and inefficient. This, and the requirement that a judge directly apply for time out-of-court to perform these important judicial functions during court hours, forces many judges to work extraordinary hours & adopt unhealthy work regimes.

While numerous writers identify the intransigence of male workplace cultures, there is some hope for change. One female judicial officer, married with two children under 18, describes recent increases in the number of women in her court then observes:

This is a big change & it is an exciting time to be on the bench. It is difficult to find a balance with family life as the system has largely been run by men whose

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wifes [sic] played a traditional role. Hopefully as the number of females on the Bench increases it will become a more family friendly working environment.

While their work/life balance as judicial officers may be better than experienced by women in other occupations, it is still experienced as more demanding than that of their male colleagues in several ways. Women judicial officers in this respect are not (entirely) out of touch with community concerns, at least regarding the work/life tensions shared with many other women. The power of gendered domestic roles persists even for women in an elite,

prestigious, highly paid occupation.

Both political world views outlined in the session description -- the welfare/therapeutic approach and the liberal/individualistic orientation -- imply a greater role for members of the public in the justice system. Public confidence and public participation are increasingly seen as important for the courts. Social change and public expectations have entailed more judicial diversity, especially increasing proportions of women, though this is limited in its extent and impact on the composition of the judiciary and on other dimensions of judicial attitudes towards their work.

A further set of questions is how judicial officers mobilize their identities as men and women in certain circumstances and the extent of gender awareness in understandings of justice. The next phase of the Judicial Research Project will entail in-depth, qualitative interviews with judicial officers nationally. These interviews will provide a nuanced account of how judicial officers understand courts as institutions that can contribute to or resist social change and their role within that process, as well as revealing the ways in which gender might infuse

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judicial practice. Continued progress towards gender diversity in the courts is essential to the legitimacy of this key public institution in a democracy.

Acknowledgements This research was initially funded by a University-Industry Research Collaborative Grant in 2001 with Flinders University and the Association of Australian Magistrates (AAM) as the partners and also received financial support from the Australasian Institute of Judicial Administration (AIJA). From 2002 until 2005 it was funded by an Australian Research Council (ARC) Linkage Project Grant (LP210306) with AAM and all Chief Magistrates and their courts as industry partners with support from Flinders University as the host institution. From 2006 the research was funded by an ARC Discovery Project Grant (DP 0665198) and from 2010 it is funded by ARC DP1096888. All phases of this research involving human subjects have been approved by the Social and Behavioural Research Ethics Committee of Flinders University. We are grateful to Russell Brewer, Carolyn Corkindale, Colleen deLaine, Elizabeth Edwards, Ruth Harris, Julie Henderson, John Horrocks, Lilian Jacobs, Leigh Kennedy, Lisa Kennedy, Mary McKenna, Rose Polkinghorne, Wendy Reimens, Mavis Sansom, Chia-Lung Tai, Carla Welsh, Rae Wood, and David Wootton for research and administrative assistance.

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