Flinders Journal of Law Reform

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https://hdl.handle.net/2328/1822

The Flinders Journal of Law Reform is a refereed, scholarly journal with a national and international outlook. It seeks to disseminate information and views on matters relating to law reform, including developments in case and statute law, as well as proposals for law reform, be they from formal law reform bodies or from other institutions or individuals. The Journal publishes articles, case and legislation notes and comments and reviews of books on law reform-related themes. It is published twice a year and the two issues per year constitute a volume of the Journal.

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It's all about risk, isn't it? Science, politics, public opinion and regulatory reform
(Flinders University School of Law, 2008-04) Haines, Fiona; Sutton, Adam; Platania-Phung, Chris
Like most Western democracies, Australia has seen constant business complaints about the regulatory burden and the need for reform. Governments have been sympathetic to these concerns and initiated numerous enquiries into ways to reduce red tape. One, published by the Regulation Taskforce in 2006, argues that a key problem is that Australians are becoming 'risk averse'. Drawing on research into the regulatory aftermath of major disasters, this paper argues that the Taskforce's approach is over-simplistic. Risk has at least three dimensions: actuarial, social and political. Proliferation of rules and regulations in the aftermath of a major disaster can be as much, if not more, the product of political risk aversion as it is of social and actuarial assessments. 'Smart' regulation, which aims to reduce risk while avoiding an excess of rules, must address all three dimensions. The paper explores when and how there can be a 'smart' response to major disaster.
An Exploration of the Experience of Interaction between the Police and Juvenile Offenders in Taiwan
(Flinders University School of Law, 2008-04) Chen, Chih-Ching; Hsu, Hua-Fu
By developing Foucault’s concepts of power, this paper aims to explore the interaction experience between Taiwanese police and juvenile offenders from a critical perspective. From macro analysis of social discourse to micro daily practice, the study objectives are to examine whether the police act as a mechanism of discourse formation for juvenile offenders, to articulate how the strategies and techniques are enforced or strengthened and to scrutinise how juveniles are disciplined and resisted. The findings reveal that the dual-oppositional discourses are constructed by defining juveniles as either ‘normal’ or ‘deviant’. Through the discipline and inspection techniques used by police, juveniles are forced to fit the image of the ‘normal juvenile’. To maintain a sense of their autonomous self, juveniles choose to resist these stereotypes. The struggle contributes to the criminal discourse reproduction, pushing juveniles into categories of criminal offenders. It is hoped that this paper can offer a framework for analysing and discussing policy in criminology and criminal justice.
The Prevention of Bushfire Arson through Target Hardening
(Flinders University School of Law, 2008-04) Christensen, Warren
An analysis of the Queensland Department of Primary Industries & Fisheries (Forestry) (DPI&F (Forestry)) Wildfire Data Base indicates that, in comparison to all other DPI&F (Forestry) districts the Beerburrum forestry district is a significant ‘hot spot’ of bushfire arson activity. A situational crime prevention paradigm was used to analyse the Beerburrum forestry district to determine the environmental factors that resulted in this district becoming a ‘hot spot’ of bushfire arson activity. This analysis found that factors such as proximity to population centres, extensive road networks and low levels of staff ‘guardianship’ contributed to the genesis of the Beerburrum bushfire arson ‘hot spot’. The paper argues that situational crime prevention techniques, such as the use of prescribed burns (to reduce ‘payoffs’ to arsonists), can be used to target harden discrete geographical bushfire arson ‘hot spots’, such as Beerburrum, making bushfire arson more difficult, less rewarding and excusable to potential arsonists.
Evaluating the Australasian Consumer Fraud Awareness Month, 2007
(Flinders University School of Law, 2008-04) Smith, Russell G; Akman, Tabor
As part of a global effort to fight mass-marketed consumer scams, consumer protection agencies in 33 western countries have participated in a month of fraud prevention activities each year to raise awareness of the problem and to provide advice to consumers on how to avoid being victimised. In Australia and New Zealand, nineteen government agencies now comprise the Australasian Consumer Fraud Taskforce (ACFT) that conducted a campaign in March 2007, the theme of which was ‘Scams Target You – Protect Yourself’. This paper provides an evaluation of the impact of the activities undertaken by the Taskforce, including the effect that the extensive publicity had on the official reporting of scams by consumers. The results of an online survey of 841 self-selected respondents are also presented. It is concluded that the campaign was highly effective in raising consumer awareness, with reporting rates increasing substantially throughout the period of the campaign.
Differences between Groups of Drivers: Offences Contrasted with Crashes
(Flinders University School of Law, 2008-04) Kloeden, Craig N; Anderson, Robert W G; Hutchinson, T Paul
If an intervention can be shown to affect the number of driving offences, is this also evidence that it has an effect on road crashes? We summarise two recent studies in which we found a difference between groups in respect of driving offences but not in respect of crashes. One study focused on the method of obtaining a driving licence, the other concerned participation in a brief intervention program for young offending drivers. Further, the literature reveals other examples of different effects on offences and crashes. One possible explanation is that there is a closer link between the behaviours targeted by the intervention and being caught offending than between those same behaviours and being involved in a crash. Unfortunately, the question remains open as to whether there is an effect on crashes that is in the same direction as the effect on offences but smaller, or whether there is no effect on crashes because the behaviours that differ between the groups are not relevant to crashes.
Legal Services and Neo-Liberalism in an Unequal Legal Order
(Flinders University School of Law, 2008-04) Tomsen, Stephen
In 1975 the landmark ‘Law and Poverty in Australia’ report (Sackville 1975a) sought to ensure substantive rather than formal equality before the law for all Australians. A fundamental aspect of its proposals was an extensive and innovative legal aid system with expanded public funding, with greater assistance in both conventional and new areas of legal need seen as a key in overcoming social disadvantage. By the 21st Century, the focus had shifted further away from the goal of substantive legal equality for all to the principle goal of cost efficiency. This paper details and analyses aspects of the historical shift from viewing legal needs as an issue of state welfare to a neo-liberal mode of governance in this sphere of policy, and the divided responses to these changes. It also considers the results for legal representation in criminal matters and the legal needs of indigenous Australians.
The Revolving Door of Penal Institutions – A Narration of Lived Experience
(Flinders University School of Law, 2008-04) Thompson, Alison
Remand to prison whilst awaiting trial can be seen as a short yet indeterminate prison sentence without the judicial sanction of criminal responsibility. Given the increasing reliance on remand as a targeted strategy for crime control it would seem pertinent to consider, not just the statistics of how such a policy plays itself out at the present time, but also to take into account the lived experience of those incarcerated thereby providing a more informed understanding of the long term efficacy of such a strategy. It is not the intention of this paper to make specific policy recommendations, but only to suggest an alternative method for understanding policy implications. This paper uses an ethnographic approach to unstructured interviews with seven people who have extensive prison experience and highlights the impact remand has had, not just on themselves, but on their families as well.
Cannabis and the Risk of Crash Involvement
(Flinders University School of Law, 2008-04) Baldock, Matthew
Drugs have long been a focus of law enforcement in Australia but recent legislation in a number of Australian states now requires routine drug testing of drivers (testing for cannabis and methamphetamine), with the stated aim of reducing road crashes. Such legislation is justified if these drugs are known to increase the risk of crashing. Literature concerning cannabis and road crash involvement was reviewed, with emphasis given to studies documenting the relative crash risk associated with driving after use of cannabis. All case-control and culpability studies of cannabis and crashes have been characterised by methodological flaws that make interpretation of the results difficult. Two recent Australian studies analysed the relationship between tetrahydrocannabinol (THC, the psychoactive component of cannabis) measured in the blood and crash culpability. These two studies produced contradictory results. In summary, the risk of crash involvement associated with driving under the influence of cannabis remains to be determined.
Tracing the Evolutionary Roots of Modern Islamic Radicalism and Militancy
(Flinders University School of Law, 2008-04) Ingram, Haroro J.
This paper takes an innovative approach to understanding Islamic radicalism and militancy by utilising charismatic leadership theory to understand the critical role of charismatic leaders in the evolutionary development of the modern Islamist movement's most radical and militant strains. The study of charismatic leadership, rather than focusing exclusively upon the individual leader, is concerned with understanding the complex interplay of social, cultural, historical, psychological and ideological dynamics that create a context conducive for the emergence of the charismatic leader-follower relationship. Consequently, this paper offers critical insights into the phenomenon of Islamic radicalism and militancy. To this end, I argue that the charismatic leader has acted as the vehicle for the evolutionary development of the more radical and militant strains of political Islam. To support this contention, I identify a chain of charismatic leaders stretching across the entire chronology of the modern Islamist movement, reflecting an increasing radicalisation and propensity towards violence with the rise of each leader. I argue that these leaders have emerged during ever present and intensifying perceptions of crisis within communities of potential support, due to the transformative charisma phenomenon in Islamic radicalism and militancy. This innovative and multidisciplinary approach to mapping the evolutionary roots of modern Islamist terrorism will reveal the critical factors at play in the evolutionary development of contemporary Islamic radicalism and militancy from its roots in Islamic modernism in the late 1800s to today’s ‘self-generating mini-groups’.
Regulating our Natural Resources - Farmers Friend or Farmers Foe? Have Regulators got the mix Right?
(Flinders University School of Law, 2008-04) Colling, Troy; Christensen, Warren
There is growing community acceptance of regulatory compliance activities that address the misuse and poor management of our natural resources. However, in some areas and industries, there is still a significant degree of resistance to these programs. Utilising Queensland’s vegetation management processes as a case study, this paper explores a range of criminogenic factors, such as Rational Choice/Routine Activities Theory and Control/Social Bond Theory, that may promote regulatory non-compliance by landholders and the ongoing rejection of regulatory requirements as being excessively restrictive and intrusive. It is argued that this ongoing rejection of regulatory requirements provides evidence of an entrenched view in some areas, that the ‘penalties do not fit the crime’. The paper will also consider how, as part of a balanced approached to compliance, strategies that promote ‘trust’ between regulators and the regulated may ultimately assist in altering these attitudes and improve levels of voluntary regulatory compliance.
Policing the ‘Bastard Boys’: Reality and Significance of the Police-Union ‘Accord’ during the National Waterfront Dispute
(Flinders University School of Law, 2008-04) Baken, David
ABC Channel 2’s compelling and controversial dramatisation of the bitter and protracted 1998 national waterfront dispute, ‘Bastard Boys’, contained fleeting glimpses of friendly police accommodation of the sacked wharfies. One scene, depicting operational police dancing the macarena with the picketing wharfies, trivialised both the significance of the police peacekeeping strategy and the intricacies of the tense police-union relationship. This paper argues that police around Australia generally adopted a negotiated, conciliatory, non-confrontational approach with the Maritime Union of Australia picketers and supporters. This strategy was based on protocols and procedures that had been developing between the police and the union movement for a decade. Police, however, maintained the capacity to use force at any stage of the conflict. The paper contends that the police strategy rejected pressure and criticism from a New Right agenda that clamoured for violent police intervention.
Australian Crime Trends and Population Ageing:A Quantified Perspective
(Flinders University School of Law, 2008-04) Rosevear, Lisa
Given that 15-24 year olds have a higher incidence of criminal involvement than other age groups, structural ageing can be expected to have a profound impact on crime trends. The purpose of this paper is to present preliminary findings from a research project that seeks to quantify the proportion of historical and projected change across the Australian criminal justice system attributable to changes in the population age structure. Major findings are that an age structure/crime pattern does exist, and operates in accordance with offender age profiles and the timing of the onset of demographic change.
The Case for Single Cells and Alternative Ways of viewing
(Flinders University School of Law, 2008-04) Grant, Elizabeth; Memmott, Paul
Until recently there was an assumption that Australian Aboriginal prisoners should be accommodated in dual occupancy or dormitory accommodation while in custody to best meet cultural needs, primarily to prevent social isolation. This historical assumption is reflected in the national guidelines for prison accommodation, various coronial and royal commission recommendations for both police and prison accommodation and evolved from the problem-solving approaches to the custodial arrangements of Australian Aboriginal peoples instituted by custodial agencies and stakeholder consultations with Aboriginal groups. This paper presents the findings from the first empirical study of the needs and preferences of Australian Aboriginal prisoners in custody. It suggests that certain types of shared and dormitory accommodation present a myriad of complex implications for Aboriginal prisoners. Such accommodation may not be the most favourable or preferred model for such individuals. And may, in fact, be a simulacrum in meeting the needs of Aboriginal prisoners for living as a social group. The paper presents new understandings and a number of socio-cultural options for viewing custodial accommodation that have significance to prisoner outcomes at various end-points in the criminal justice system.
Academic Terror: Ideology in Analysis
(Flinders University School of Law, 2008-04) Kurtschenko, Joey
The purpose of academic writing is to analyse. Although this is true of the form, there is still room within analysis to move into ideological veins, putting forward views alongside analysis or sometimes in place of it. Linguistics provide us with some of the tools to see these occurrences take place, yet literary theory opens up new doors and enables us to be critical of texts without being critical of authors. In this paper, linguistic and literary techniques are presented before being applied to three separate texts on ‘terrorism’, showing how it is defined and the processes by which the techniques avoid abjection, with extra texts being utilised where appropriate. It concludes that, although ideology does not make texts useless, there is a potential for influential issues to arise.
Foreword
(Flinders University School of Law, 2008-04) Wundersitz, Joy; Son, Christina
Foreword to THE FLINDERS JOURNAL OF LAW REFORM VOLUME 10 ISSUE 3 (2007/8) — Special Electronic Edition — ANZSOC Conference Proceedings — Select Papers
Contractualism and Policing in the Public Interest
(Flinders University School of Law, 2008-04) Ayling, Julie
Once, police largely depended on their status as the embodiment of the State’s monopoly on coercive force to obtain the assistance they needed to do their job. Today they are increasingly reliant on formalised arrangements of reciprocity with other public and private agents. Police are both purchasers and vendors of goods and services, including security services. This paper explores the issues surrounding the growing importance of contractualism in policing and its risks. After an examination of events policing by one large Australian police organisation, the paper concludes that, although the risks are substantial, newer economic forms of policing like ‘user-pays’ are not necessarily antithetical to the public interest. They may, in fact, promote it.
Approaching Responsivity: The Victorian Department of Justice and Indigenous Offenders
(Flinders University School of Law, 2008-04) Spivakovsky, Claire
Offender rehabilitation has developed a stronghold on correctional practice in the past two decades. Further strengthening this grip have been three main principles for effective practice; risk, needs and responsivity. This paper will focus on the responsivity principle, which dictates that effective rehabilitation involves consideration of an offender’s cognitive behavioural characteristics and appropriate program delivery. In particular, this paper will analyse how this task has been approached by the Victorian Department of Justice in relation to Indigenous offenders. Drawing on recent interviews with Justice staff, it will be shown that Justice’s approach to being responsive to the needs of Victorian Indigenous offenders is more complex than addressing cognitive behavioural characteristics and program delivery. It involves meaningful interactions that extend beyond the Department of Justice and Indigenous offenders to include Indigenous communities.
Passports to advantage:Health and capacity building as a basis for social integration
(Flinders University School of Law, 2008-04) Kinner, Stuart A
Released prisoners are characterised by chronic social disadvantage, poor physical and mental health, and high rates of substance misuse – a continuation of problems experienced prior to imprisonment. High rates of recidivism and fatal drug overdose post-release indicate that integration of ex-prisoners is often unsuccessful. Despite this, remarkably little is known about recently released prisoners and it is thus difficult to formulate evidence-based policies for this group. The stated policy of most correctional services in Australia is one of ‘throughcare’, which implies continuity of needs- and evidence-based service provision from the moment of reception, through to return to the community and beyond. At present, however, there is a dearth of evidence-based services and support for ex-prisoners. This presentation will review the evidence regarding the experiences of released prisoners and consider models of post-release service provision. One promising model, which aims to proactively improve health and capacity and thereby promote integration, will be described. A randomised controlled trial of this model has recently been funded by the NHMRC; the rationale, aims and key features of this model will be discussed.
Measuring Offender Discount Rates: An Overview of the Issues and a Suggested Methodology
(Flinders University School of Law, 2008-04) Torre, Andrew
Criminologists assert that some offenders exhibit impulsive behaviour. If this is correct then this impulsiveness will manifest itself through high discount rates. However discount rates are difficult to observe and measure. In this paper a methodology is proposed, which considerably reduces the complexity of this task, through observing the offender’s actual plea decision. This is a valuable exercise because the results can be usefully utilised in formulating policy as well as providing insights into offender psychology.
Bail Supervision and Young People: Pathway or Freeway?
(Flinders University School of Law, 2008-04) Mather, Steve
Over the past decade bail legislation reform has curtailed the presumption in favour of bail and enabled its therapeutic use. Arguably such changes transform the traditional role of bail as a means of ensuring a defendant’s return to court and balancing the presumption of innocence. These changes are likely to present challenges to those managing conditional bail and those subjected to it, particularly in relation to minimising net-widening and deviancy amplification. This paper describes Stage One of a study involving an analysis of the administrative records of 512 young people and interviews with youth/social workers. The study found supervised bail orders contained a number of quasi-therapeutic conditions and were used, in part, to address young people’s ‘needs’. The findings suggest caution needs to be exercised when using bail as a rehabilitative tool in order to avoid the risk of entrenching young people further into the system.

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