April 2008

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Articles from the special electronic issue of the Flinders Journal of Law Reform, April 2008.


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    Contents Vol 10, Issue 3
    (Flinders University School of Law, 2008-04)
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    What Once Was Old Is New Again: Reviving An Early-Modern Form Of Interdisciplinarity For Socio-Legal Studies
    (Flinders Univeristy School of Law, 2008-04) Wickham, Gary; Kendall, Gavin
    Socio-legal studies are an essentially interdisciplinary enterprise. However, there is currently only one form of interdisciplinarity that most socio-legal scholars (and criminologists) recognise and work with. This form is derived from the idea that 'society itself' - and by this most scholars mean ‘civil society’ - drives the law. However, another, rival understanding of society, which we term the authoritarian-liberal statist understanding that slipped from view in the late seventeenth century and remained obscure from then until now, may be used to generate another form of interdisciplinarity for socio-legal studies (and for criminology). However, this rival understanding of society does not simply allow us to reconfigure our notion of ‘society’; it radically changes the role society plays in relation to the law. Two crucial points emerge from this rival account: first, society can no longer be understood as separable from (even though interacting with) the law; and second, society can no longer be understood as driving the law.
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    Police Education Past and Present: Perceptions of Australian Police Managers and Academics
    (Flinders University School of Law, 2008-04) Trofymowych, Delaine
    In an effort to modernise police organisations and professionalise policing, it is becoming increasingly common for police today to obtain formal university qualifications. Within the Australian context, the National Police Professionalism Implementation Advisory Committee (NPPIAC) recommended in 1990 that police pursue full professional status reflecting national education standards underpinned by university qualifications. This paper explores, from a national perspective, key stakeholders’ perceptions about police university education and professionalism. Forty in-depth interviews were carried out with police managers and academics occupying pivotal positions in police education from across Australia. Both police managers and academics had generally favourable views towards university education for police and working together in the delivery of policing courses. However, in contrast to the NPPIAC recommendations, perspectives about the professional status of police and the actual role of university education in police organisations, differed. In addition, there were a variety of views about imposing mandatory requirements on police to complete university courses. This paper is part of a larger study into university education for police managers and presents the preliminary findings of one phase of the study.
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    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.
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    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.
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    The USA PATRIOT Acts (et al): Collective Amnesia, Paranoia and Convergent, Oligarchic Legislation in the ‘Politics of Fear’
    (Flinders University School of Law, 2008-04) Thorne, Kym; Kouzmin, Alexander
    Comparative analysis has been ignored in recent decades as the mantra of ‘convergence’ has taken hegemonic forms under globalisation and, more recently, under the exporting of a United States–inspired ‘exceptionalism’ within this Neo-liberal project. The ‘War on Terror’ provides an unusual window for ‘seeing’ real convergence in the largely ‘invisible’ manoeuvring over framing and re-framing of anti-terrorist legislation in the US, UK/Europe and Australia. A cursory, comparative glance at The USA PATRIOT Act 2001, The USA PATRIOT Act 2006, other legislative variations in the United Kingdom/European Union (UK/EU) and Australia, and Stalinist legislation - Article 58, Criminal Code of the RSFSR (1934) - provides uncomfortable reading and an interesting convergence in the use/abuse of the ‘politics of fear’. Within Neo-liberalism, arguably, the destruction of long standing civil and political rights in the name of defending such rights is surely an issue for future democratic account. The current irrelevance of Habeas Corpus in so-called Anglo-American democracies would have many a tyrant marvelling at the rapidly convergent, authoritarian behaviour of political oligarchs in Liberal-democratic societies and the actual de-legitimation of sovereignty and democratic values under the onslaught of hubris, propaganda and fear.
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    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.
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    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.
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    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.
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    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.
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    Fit for Purpose: Working with the Community to Strengthen Policing in Victoria, Australia
    (Flinders University School of Law, 2008-04) Casey, John; Pike, David
    Victoria is the Australian police jurisdiction that has made community engagement most central to its operating philosophy. In 1999, it adopted Local Priority Policing (LPP) as a core operation principle. LPP focused on facilitating local input and community partnerships to strengthen the prevention and response capabilities of Victoria Police. Currently, a new fit for purpose service delivery model is being developed which builds on past experiences. This paper looks at the history of LPP and other community engagement programs in Victoria, and how the lessons learnt from this initiative are impacting on future strategic options for service delivery. It focuses on the urban areas in the state of Victoria and examines how the community has been adopted as partners in the battle against crime and disorder.
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    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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    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.
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    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.
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    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.
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    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’.
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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.
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    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.
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    (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