Stranger Danger Cultural Constructions o

Edited by Marie Segrave | M

Published by: Criminology School of Political & Social Inquiry Faculty of Arts Monash University December, 2009 http://www.arts.monash.edu.au/criminology/

Publication data

Title Details: Title 1 of 1 - Australia & New Zealand Critical Criminology Conference 2009 Subtitle: Australia & New Zealand Critical Criminology Conference 2009: Conference Proceedings ISBN: 978-0-9807530-0-4 Format: Online Publication Date: 12/2009 Subject: Criminology and Law Enforcement Editor Marie Segrave. Authors/Contributors: Segrave, Marie. Monash University. School of Political and Social Inquiry. Australia and New Zealand Critical Criminology Network.

Australia and New Zealand Critical Criminology Conference 2009 Conference Proceedings CONTENTS

Foreword

5 Sentencing Indigenous Resisters as if the Death in Custody Never Occurred

Thalia Anthony

6 Prisons and Vulnerable Persons: Institutions and Patriarchy

Eileen Baldry

18 Mainstreaming Problem-Oriented Justice: Issues and Challenges

Lorana Bartels

31 Surviving Outside: Bearing Witness to Women’s Post-Release Experiences of Survival and Death

Bree Carlton & Marie Segrave

41 Police Bail Decision-Making in Victoria: Private Decisions, Public Consequences

Emma Colvin

51 Intelligence Support to Law Enforcement: Untangling the Gordian Knot

Jeff Corkill

60 Identifiable, Queer and Risky: The Role of the Body in Policing Experiences for LGBT Young People

Angela Dwyer

69 ‘Till Death Do Us Part: Judging the Men Who Kill Their Intimate Partners

Kate Fitz-Gibbon

78 Non-Transparent Justice & the Plea Bargaining Process in Victoria

Asher Flynn

88 Multiple Punishments: The Detention and Removal of Convicted Non-Citizens

Michael Grewcock 101 Stranger Danger? Cultural Constructions of Sadistic Serial Killers in US Crime Dramas

Annette Houlihan 111 Integrating Restorative Approaches In Victims’ Compensation and Assistance

Tyrone Kirchengast 122 Confidence in Justice Systems: Assessing Public Opinion

Murray Lee 132 Vigilantes Unmasked: An Exploration of Informal Criminal Justice in Contemporary South Africa

James Martin 142 Precrime: Imagining Future Crime and a New Space for Criminology

Jude McCulloch 151 The Best Police Force Money Can Buy: The Rise of Police PR Work

Alyce McGovern 163 Trafficking Reconsidered: A Gaze into a Crystal Ball and Ways Forward

Sanja Milivojevic 171 Returning to the Practices of our Ancestors? Reconsidering Indigenous Justice and the Emergence of

Restorative Practices Kelly Richards

Outside The Curriculum: Informal Learning in Prison Miriam Scurrah

194 Illegal Labour & Labour Exploitation in Regional Australia

Marie Segrave 205 The Construction of the Racially Different Indigenous Offender

Claire Spivakovsky 215 Bail in Australia: Legislative Introduction and Amendment Since 1970

Alex Steel 228 Critical Reflections on Bail and Remand for Young People in NSW

Julie Stubbs 244 Representations Of Indigenous Offenders: The ‘Gang Of 49’- A Media Drive By?”

Laura Swanson 258 Victimhood, ‘Sexual Deceit’ and the Social Origins of the Criminalization of HIV Transmission

Stephen Tomsen 266 Vigilantism, the Press and Signal Crimes 2006-2007

Ian Warren 275 Punitive Rehabilitation in New South Wales: New Developments in Community Corrections

Denise Weelands 285 Waste Not, Want Not: Externalising Environmental Costs and Harms

Rob White 294

Foreword

The 2009 Australia & New Zealand Critical Criminology Conference cemented this event as an important annual forum. Since the inaugural 2007 gathering in Sydney the ANZ Critical Criminology Conference has continued to build momentum within and beyond Australia. For 2009 the conference was held in Melbourne and hosted by Monash University Criminology. The diverse breadth and scope of critical criminological research in Australia and New Zealand was evident in the fifty papers presented by researchers to an audience of one hundred academics, researchers, policy makers, advocates and students. The gains of critical criminology across Australia and New Zealand were further showcased by the launching of four monographs over the course of the two day conference: Anna Eriksson’s Justice in Transition (Willan); Stephen Tomsen’s Violence, Prejudice and Sexuality (Routledge), Elizabeth Stanley’s Torture, Truth and Justice (Routledge) and Marie Segrave, Sanja Milivojevic & Sharon Pickering’s Sex Trafficking (Willan).

This collection of papers is testamount to the expanding reach of critical research and, importantly, brings together the work of emerging and established acamedics to reflect the many directions in which critical criminology is moving.

We extend our thanks to all contributors to this collection and acknowledge with gratitude all referees who reviewed papers, including: Alex Steel, Eileen Baldry, Bree Carlton, Sharon Pickering, Anna Eriksson, Danielle Tyson, Michael Grewcock, Julie Stubbs, Rob White, Caitlin Hughes, Thalia Anthony, Annette Houlihan, Tracey Booth, Stephen Tomsen, Rob White, Sanja Milivojevic, Elizabeth Stanley, Leanne Weber, Harry Blagg and Murray Lee.

Marie Segrave, Dean Wilson & Jude McCulloch Critical Criminology Conference Convenors 2009 Monash University, Melbourne.

Sentencing Indigenous resisters as if the death in custody never occurred

Thalia Anthony, Sydney University 1

Abstract

This paper addresses the trends in sentencing by higher courts of Indigenous protesters against ‘white’ racist violence. It contrasts earlier sentencing decisions affecting resisters on the Yarrabah Reserve in 1981 and towards the 1987 death in custody of Lloyd Boney at Brewarrina (NSW), with later sentencing of protesters after Mulrunji’s death in custody on Palm Island in 2004. It argues that Indigenous resisters are increasingly characterised by sentencing judges as out-of-control rather than capable of legitimate political engagement. This dovetails a denunciation of the Indigenous community in media moral panics that demands more punitive restraint.

Introduction Criminal sentencing has been a space to recognise Indigenous factors in the criminal justice system.

Sentencing judges have taken it upon themselves to identify Indigenous factors for mitigating a sentence. They have identified cultural expectations, community dysfunction and racial conflict as potential grounds for mitigation.

However, Indigenous recognition in sentencing is an invariably limited space in the white criminal justice system. This is, first, because the Indigenous person has already been subjected to the punitive aspects of criminal procedure and been determined guilty. Therefore, sentencing only offers limited relief. Second, mitigation is an exercise of paternalism. Douglas Hay (1975) has noted that sentencing judges use mercy to demand gratitude from the dispossessed classes, which are otherwise subject to coercion. Third, recognition is prone to shifting ‘white’ perceptions of whether Indigeneity is grounds for mitigation or aggravation. Again, Douglas Hay suggests that sentencing judges rule through keeping the dispossessed guessing whether they will exercise leniency or coercion.

The changing recognition of Indigenous factors in sentencing by higher courts is apparent since the 1990s in relation to so-called ‘riot’ offences after a death in custody or ‘white’ racism. Because there is now a view that Indigenous people belong to dysfunctional and out-of-control communities, the riot is treated by sentencing judges as an irrational and unreasoned act, whereas previously greater attention was given to how the white system contributed to Indigenous peoples’ acts of violence. Indigeneity is now grounds

1 Lecturer, Sydney University. Email (for 2010): thalia.anthony@uts.edu.au 1 Lecturer, Sydney University. Email (for 2010): thalia.anthony@uts.edu.au

In more recent criminal sentences, Indigenous resisters are receiving increasingly punitive sentences that both reflect the moral panics in the media, as well as help create moral indignation towards Indigenous communities and absolve the wrongdoing of the police in precipitating the riot. The police officer becomes the ideal victim. The image and deemed offence of the riot represents a chaotic spontaneity that undermines a ‘reasoned response’ to discriminatory policing (Scraton 2007). It removes questions as to why the act occurred and, as Chris Cunneen (2007:23) argues, promotes a narrative of ‘blind lawless purposelessness’. As Andy Gargett (2005:9) notes, the overarching portrayal of Indigeneity as criminal ‘reduces the riot to acts of criminality, rather than acts of desperation or frustration’. This view is perpetuated by the trial and sentencing judges in the cases involving the so-called rioters.

‘Entitled to be an agitator’: Neal v The Queen (1982) 149 CLR 305 The only opportunity the High Court has taken to consider Indigenous sentencing factors was in the case

of Neal v The Queen (1982). It involved a confrontation between Collins, a non-Indigenous officer of the Department of Aboriginal and Torres Strait Islander Affairs, and the accused, Percy Conrad Neal, the elected Chairman of the North Queensland Yarrabah Community Council, over Aboriginal self- management of the Reserve.

The sale of rotten meat to Aboriginal people in 1981 was the final straw. With 12 other Aboriginal people, Neal sought out the chief Government officers of the reserve. He found Collins, who was also the store manager. After an argument about the management of the reserve, Mr Neal swore at Collins, told him that he was a racist and that he and all the other “whites” should get off Yarrabah reserve (Neal v The Queen 1982:321). He then spat in Collins’ face. Neal was convicted of unlawful entry and assault (through spitting).

Neal’s trial and appeal to the Qld Criminal Court of Appeal Neal was sentenced by a Cairns magistrate to imprisonment for two months. The Magistrate was critical

of the act against the white officer: ‘Violence is something in recent times which has crept into Aboriginal communities. I blame your type ….’ (cited in Neal v The Queen 1982:325). He went on to criticise the political resistance, ‘Your actions in taking unto yourself the task of removing all whites from Yarrabah cannot be condoned from any angle’ (cited in Neal v The Queen 1982:325).

Neal applied to the Queensland Court of Criminal Appeal and his sentence was actually increased to six months imprisonment. The Court referred to the 12 youths with Neal as ‘a mob’, although at no time were they present on the officer’s property (cited in Neal v The Queen 1982:313).

Neal HCA: critiquing magistrate’s comments On appeal to the High Court, the magistrate’s two month sentence was reinstated. Although two of the

four judges, Gibbs CJ (Neal v The Queen 1982:307) and Wilson J (Neal v The Queen 1982: 320), allowed Neal’s appeal on the technical basis that the Court of Appeal was acting ultra vires, all judges accepted that the lower courts should take into account the racial tensions on the reserve.

Justice Brennan focused on the ‘emotional stress’ created by the racial tensions on the ‘paternalistic system’ of the reserves (Neal v The Queen 1982: 325). Wilson J (Neal v The Queen 1982: 320) similarly noted that Neal’s conduct was a result of the ‘frustration and emotional concern engendered in him by the manner in which the reserves were administered and his endeavour to obtain self-management’. Brennan J (Neal v The Queen 1982: 324-325) explained that the facts of the case pointed to ‘special problems’ which may explain — though could not justify or excuse — Neal's conduct.

Justice Murphy is more forthcoming in suggesting that ‘Aborigines have a right to participate in and direct their own policies’ (Neal v The Queen 1982: 318) and protest against the ‘reserve conditions and race relations’, which are to be treated as special mitigating factors in a sentence. He cites the United States experience, where ‘persons frustrated by powerlessness through the exercise of racist policies and practices ... sometimes express [grievances] in the only way possible — by protest or violence’ (Neal v The Queen 1982: 318). He further states,

If [Neal] is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. … That is the reason why agitators are so absolutely necessary. … Mr. Neal is entitled to be an agitator (emphasis added, Neal v The Queen 1982: 318).

Although Murphy’s view was the exception on the Bench, it provided a solid enunciation of sentencing mitigation. The weaker, individualised enunciation of Indigenous factors by Brennan and Wilson JJ prevailed. However, sympathy towards the Indigenous individual would transform into disdain towards the ‘out-of-control’ Indigenous individual.

Brewarrina death in custody and sentencing context In 1991 the New South Wales Court of Criminal Appeal reviewed the sentences of Aboriginal people convicted of riot offences after the death in custody of Lloyd James Boney in 1987 in Brewarrina. Boney was a 28-year-old Aboriginal man who was found hanging by a football sock in his police cell 1½ hours after he was arrested for breaching bail conditions.

After the death in custody, the Aboriginal community accused the police of killing Boney (Wootten 1991:1). The view was that it was physically impossible for Boney to kill himself while heavily intoxicated and nonetheless he was not inclined to commit suicide. The community was also outraged with the police insensitivity in removing his body to Bourke before notifying his family of his death (Wootten 1991:1).

Less than a week after the death, the investigating police and NSW Police Minister reported that Boney had committed suicide without any foul play on the part of the police. This occurred after an internal investigation that was conducted overnight and involved only one officer being interviewed. There were criticisms of police investigating police, cover-ups and fabrications of evidence, which were later

confirmed by the coroner.

Brewarrina Riot In the week following Boney’s death, protests outside the police station gathered momentum. They were

all the more powerful because the Committee to Defend Black Rights had been monitoring deaths in custody over eight months and found an average of one death every 11 days. The Committee was calling on the Federal Government to initiate a Royal Commission into Aboriginal Deaths in Custody. Within a week of Boney’s death, the Federal Government announced the Commission.

The so-called “riot” occurred at Boney’s wake. The police flouted an agreement between Western Aboriginal Legal Service and a non-Aboriginal police liaison officer to steer clear of the wake. At the wake, eight officers armed with riot shields, batons and helmets provoked about 20 mourners to fight (Pitty 1994). They became armed with iron bars and fence posts and shouted, ‘Black people have been killed by white people for more than 200 years’ (Lewis 1991:3). The riot lasted about 40 minutes; four police officers and numerous Indigenous people were injured (Hewett 1987:1). The ‘riot’ led to the arrests of 17 people, labelled the Brewarrina 17.

Moral panic – Brewarrina; complex narratives The riot attracted headlines such as ‘Blood on the Street: the Night a Town Exploded’ (Hewett 1987a:1).

The rioters were represented as drunks and images of beer bottles stacked in the park were televised. The response of the riot police was depicted as normal and legitimate. During the trials of the Brewarrina

17, the riot was televised repeatedly and omitted footage of police beating Aboriginal people in the park (Morris 2001).

However, embedded in the media reports was that Boney’s death in custody had been a major factor in the riot. The media was also critical of some of the police accounts. In the back pages of the Sydney Morning Herald, an unnamed journalist pointed to the riot as an act of resistance to the death in custody, poor living conditions, and 200 years of Aboriginal abuse (Anon 1987: 16). The journalist describes the violence as that ‘practised by oppressed groups at "the end of their tether"’ to beg ‘the dominant group to take notice of their inhuman plight’ (1987: 16).

Brewarrina Trial judge’s findings At first instance, in trying and sentencing two deemed protagonists in the riots, Sonny Bates (Boney’s

brother-in-law) and Arthur Murray (an Aboriginal elder who was a campaigner for the Royal Commission and whose son had died in police custody), District Court Judge Nash, amplified the perception of Aborigines as violent, unpredictable and unstable (Morris 2001). He refused to refer to the death in custody as a contributing factor to the violence. Boney’s death, however, could not have been clearer. On the same day as the trial, a Royal Commissioner into the Aboriginal deaths in custody, Wootten, handed brother-in-law) and Arthur Murray (an Aboriginal elder who was a campaigner for the Royal Commission and whose son had died in police custody), District Court Judge Nash, amplified the perception of Aborigines as violent, unpredictable and unstable (Morris 2001). He refused to refer to the death in custody as a contributing factor to the violence. Boney’s death, however, could not have been clearer. On the same day as the trial, a Royal Commissioner into the Aboriginal deaths in custody, Wootten, handed

The trial led to the convictions and imprisonment for riotous assembly and assaulting police (Lewis 1991:3; Lewis 1991b:3), despite evidence that Bates was violently attacked by the police and otherwise played no role, and Murray had tried to stop the confrontation with the police (Pitty 1994). District Court Judge Nash sought to defend the police in the trial and influence the jury regarding the guilt of the rioters. Justice Nash ordered the jury to ignore media reports about the Black Deaths in Custody Royal Commission, particularly the findings on the death of Lloyd Boney’s death (Lewis 1991a:6).

In sentencing the Murray and Bates, the judge presented them as responsible for disturbing the harmony in the community by encouraging hatred of police. Nash J stated with a nostalgia for the virtuous past of racial segregation, that in the 1950s and 1960s the ‘court sat only once per month and it was largely white people who were accused’, whereas in the 1970s as living conditions improved and Aboriginal rights were asserted, race relations changed for the worse. After pointing to the downfall of the previous harmony, the judge said that ‘Aborigines’ [sic] are now attacking police, which ‘could only be described as

a completely unprovoked and violent riot’ (emphasis added) (Lewis 1991b:3). This was, according Nash J, an alcohol-fuelled ‘half-hour of madness’ (Lewis 1991b:3).

NSW Court of Criminal Appeal sentencing decision The accused appealed to the NSW Court of Criminal Appeal against the conviction on the basis of Justice Nash’s bias to the police role at trial, and against the sentence for not accounting for the death in custody as a mitigating factor. Their appeal was upheld and their convictions of riotous assembly and assault were set aside (Curtin 1992: 7). Chief Justice Hunt was strongly critical of Justice Nash who, on cross- examination, ‘actually helped a police officer’ and who in summing-up gave an ‘unhelpful review of the evidence’ that ‘weighed unfairly against the accused’ (Curtin 1992:7; Voumard 1992:10).

The Court of Criminal Appeal recognised Indigenous disadvantage and the death in custody as relevant factors of racial discrimination and the riot response. Chief Justice Hunt held that

It would have been quite unrealistic for the jury to have considered the specific blows alleged to have been inflicted by each of the accused upon which the riot charge was based without knowledge of the initial reason for which the crowd had gathered (following the funeral of the Aboriginal man who died in police custody) (R v Murray 1991: 9).

The Court not only mitigated the sentence of Bates and Murray, but set aside both riot and assault convictions for lack of evidence of identity despite abundant evidence of the police injury and the nature of the offence. In other sentences, such as that of Glen Boney, Lloyd Boney’s brother, the Court of Criminal Appeal identified the death in custody was identified as a relevant factor.

Palm Island death in custody and sentencing without context The clearest expression of the demotion of the death in custody as a sentencing factor was in the sentencing of the Palm Island protesters after the death in custody of 36-year-old Mulrunji. The circumstances of the death were that Senior Sergeant Hurley arrested and detained Mulrunji, who had almost no criminal record, for offensive language on 19 November 2004. Forty minutes after his arrest Mulrunji was dead in a Palm Island police cell. The injuries he sustained in custody were a black eye, four broken ribs, and a ruptured liver and portal vein. The ensuing investigation was conducted by mates of the responsible officer, Sergeant Hurley. The community was told following the investigation that Mulrunji had slipped on a step.

The community anger to the death in custody and prejudicial investigation culminated in a public protest. On 26 November 2004 approximately 300 people (one-eighth of the Palm Island population) assembled at the police station demanding that the police leave. The group threw stones and mangoes at the police building and yelled abuse at the police. The Queensland Government’s response to the protest was to declare a ‘state of emergency’ on the Island, evacuate medical and teaching staff and send 80 Tactical Response Group Commandos to the Island (Hunter 2005).

The police officers were pointing rifles to the Palm Island protesters and prepared to fire on them to preserve their own life (R v Wotton 2007: at 7). The officers ultimately retreated to the hospital and police barracks. Over the next three hours, the barracks, police station and court house, ‘which were all The police officers were pointing rifles to the Palm Island protesters and prepared to fire on them to preserve their own life (R v Wotton 2007: at 7). The officers ultimately retreated to the hospital and police barracks. Over the next three hours, the barracks, police station and court house, ‘which were all

Moral Panics relating to the Palm Island melee The protest on Palm Island flooded the national mainstream media. It was portrayed as an impulsive event that was incited by a ‘mob’ of rioters. In its coverage, the Australian media made no reference to the partial investigation into the death in custody and scant reference to the death in custody itself. It did focus on the pathos of the community and its living conditions. The media did not refer to historic tensions in police-Indigenous relations. Headlines such as ‘Palm Island erupts’ (Mancuso & Connolly 2004) and ‘Palm Island Explodes: Anarchy on Palm Island on knife’s edge overnight’ (Lineham and Seeney 2004:1) cast the rioters as uncontrollable and irrational; without cause or reason.

The Queensland Police Union (2005: 26), Queensland Police Commissioner and the Queensland Government ran a concerted campaign to defend the police officers’ role in the riot (Eastley 2004; Pavey 2004). This went hand in hand with the Police Union’s campaign to absolve Hurley of any wrongdoing associated with Mulrunji’s death in custody (Willoughby 2007: 4).

Sentencing of Lex Wotton Lex Wotton was regarded as the ringleader of the riot. The 37-year-old was a long-term Indigenous activist. The criminal justice system sought to make an example of him by handing down the harshest sentence. In late 2008, four years after his act of resistance; after a barrage of adverse media and police union publicity on the riot; after judicial remarks on Wotton’s culpability and moral wrongness throughout his preliminary proceedings; and after the acquittal of Sergeant Hurley for the manslaughter of Mulrunji, Shanahan J of the Townsville District Court sentenced Wotton to six years imprisonment.

In his sentencing remarks he disavowed the context of the death in custody and the mishandled investigation, and focused instead on deterrence and the seriousness of the offence, especially as police officers were victims. A significant sentencing consideration was the vindication of the police who were targeted in the protest.

The judge held that the ‘riot’ was so ‘intrinsically dangerous’ that circumstances such as Mulrunji’s death did not warrant consideration (R v Wotton 2008: 5). He followed the position of the Court of Appeal that reviewed the sentences of other Palm Island ‘rioters’. The Court of Appeal held that,

[T]he background [ie the death in custody] to this matter is not particularly relevant for the purpose of the sentence. The reason for that, in my view, is the serious nature of the offence itself, rioting with destruction (cited in R v Wotton 2008: 4).

Also following the Court of Criminal Appeal, Shanahan J positioned the offence not in Palm Island’s context but in ‘recent and not so recent world history’ that ‘illustrates the immense damage wrought by riots’ (R v Wotton 2008:6, emphasis added). Shanahan J remarked that ‘mob conduct’ and descent ‘into lawlessness’ is not ‘tolerated in a civilised community’ that requires a reasoned response (R v Wotton 2008:6). The sentence was therefore to be increased with regard to general deterrence.

Despite the fact that no police officers sustained serious injuries (which may be contrasted with the Brewarrina protest), seriousness was the major consideration in handing down the sentence. Justice Shanahan noted that it was the police ‘identity of the targets of this violent riot which renders the involvement of anyone in it, distinctly grave’ (R v Wotton 2008:5). In this way, sentencing added to the perception of the police as victims rather than perpetrators of the death in custody and racial violence.

Concluding remarks The sentencing of Indigenous resisters over the past 20 years shows, first, that recognition of Indigeneity

in sentencing is as much prone to leniency as it is to punitive condemnation. Both sentencing stances are processes of control that denies plurality of sovereign systems and demands genuflection to the judge.

Second, we see in decisions since 2004 a renewed emphasis on the seriousness of the offence in sentencing. The focus on the offence rather than the reason demonises Indigenous people as criminal and situates the police in the position of the victim. The characterisation of unreasonably violent Indigenous people not only excuses the police role in the death in custody, but exculpates them from any racial violence against Indigenous people, including in the ‘riot’ itself. This goes hand in hand with other Second, we see in decisions since 2004 a renewed emphasis on the seriousness of the offence in sentencing. The focus on the offence rather than the reason demonises Indigenous people as criminal and situates the police in the position of the victim. The characterisation of unreasonably violent Indigenous people not only excuses the police role in the death in custody, but exculpates them from any racial violence against Indigenous people, including in the ‘riot’ itself. This goes hand in hand with other

The shift away from a consideration of the causes of the ‘riot’ in sentencing dovetails the growing moral indignation towards Indigenous communities over the past 20 years. Communities are perceived to have failed because they could not be tamed by white policies. The ‘riots’ are used as symbols of an out of control Indigenous community, which require infinitely greater controls in the fashion of law and order. Deaths in custody and police violence are mere collateral damage for police who are attempting to impose this control. The Indigenous response to these deaths is constructed in a way that allows further control by the Anglo-Australian criminal justice system.

The alternative for sentencing judges would be to see the white legal system as a culture that is itself out of control; as a culture that allows acts of murder without redress and diminishes Indigenous community strengths. But this would undermine the role of the sentencing judge, which is, in the words of Douglas Hay (1975), is enforce ‘bonds of obligation on one side and condescension on the other’.

References Anon. 1987 'A riot at Brewarrina' Sydney Morning Herald 18 August p16. Cunneen C 2007 'Riot, Resistance and Moral Panic: Demonising the Colonial Other' in Outrageous! Moral

Panics in Australia S Morgan (ed) ACYS Publishing Hobart. Curtin J 1992 'Riot verdicts set aside on appeal' Sydney Morning Herald 7 April p7. Eastley T (2004) 'QLD police commissioner defends Palm Island response' Australian Broadcasting Corporation

30 November. Gargett A 2005 'A Critical Media Analysis of the Redfern Riot' Indigenous Law Bulletin vol 6 no 10. Hay D 1975 Albion's fatal tree: crime and society in eighteenth-century England Pantheon Books. Hewett T 1987 'Race Riots: more towns are at risk' Sydney Morning Herald 18 August p1.

1987a 'Blood On The Street The Night A Town Exploded' Sydney Morning Herald 17 August p1. Hope D 1999 'Call to discipline police over Aborigine's death' Sydney Morning Herald 10 April p2. Hunter C 2005 'Palm Island: the truth behind the media portrayal – an interview with Erykah Kyle, Chairperson

of the Palm Island Aboriginal Council' Indigenous Law Bulletin vol6 no12. Levitt

Law Report Online: www.abc.net.au/rn/lawreport/stories/2008/2416076.htm .

Lewis D 1991 'Two Found Guilty Over Brewarrina Funeral Riot' Sydney Morning Herald 17 April p3.

1991a 'Funeral riot: Jury told to ignore cell deaths report' Sydney Morning Herald 13 April p6. 1991b 'Black's behaviour has deteriorated: Brewarrina riot judge' Sydney Morning Herald 9 May p3.

LinehamS & SeeneyH 2004 ‘Palm Island Explodes: Anarchy on Palm Island on knife's edge overnight’ Townsville Bulletin 27 November p 3.

Mancuso R & Connolly S 2004 ‘Palm Island erupts: buildings burn, police threatened’ Australian Associated Press 26 November.

Morris B 2001 'Policing racial fantasy in the Far West of New South Wales' Oceania vol 71 no 6 pp242-262. Pavey A 2004 'Beattie defends police tactics in island riot' Australian Associated Press 29 November. Pitty R 1994 'Brewarrina Riot: the Hidden History' Aboriginal Law Bulletin vol51. Queensland Police Union 2005 Police Journal July. Scraton P 2007 Power, Conflict and Criminalisation Routledge London Voumard S 1992 'Convictions Over Riot Set Aside By Judge' The Age 7 April p10. Willoughby S 2007 'Solidarity for Hurley: Incensed Coast cops in protest' Gold Coast Bulletin 31 January.

Wootten H 1991 'Report of the Inquiry Into the Death of Lloyd James Boney' Royal Commission Into Aboriginal Deaths In Custody Canberra.

List of cases Neal v The Queen [1982] 149 CLR 305.

R v Murray, R v Bates [1991] (NSW Court of Criminal Appeal, Unreported, 6 April 1992). R v Wotton [2007] (Unreported, QDC 181, 25 May 2007). R v Wotton [2008] (Unreported, Townsville District Court, 7 November 2008).

Prisons and vulnerable persons: institutions and patriarchy Eileen Baldry, University of New South Wales 1

Abstract

The prison has been developing into a mixed mode institution with large numbers of vulnerable persons, including Aboriginal women and people with mental illness and cognitive disability, being serially incarcerated at high rates. The characterisation of prison as a punishing but therapeutic community is bizarre but has its roots in 19th & 20th century patriarchal colonial and welfare institutions, particularly those for women and children. Is prison in the early 21st century the last institution of control left in which to house such vulnerable persons? This paper discusses this development of the prison and its effects.

Introduction Understanding and explaining the rapid increase in the rate of imprisonment in Australia over the past two to three decades is occupying a number of criminologists, not least the Australian Prisons Project group ( http://www.app.unsw.edu.au ). One aspect of this investigation is exploring why it is that vulnerable groups of Australians (Indigenous Australians, especially Indigenous women and persons with mental health disorders and cognitive disability) have developed a much higher risk than previously of being caught in the imprisonment cycle over this period. This paper opens a new perspective on this phenomenon by exploring it through the lens of patriarchy and institutionalism.

Background Between 1998 and 2008 the number of prisoners in Australia increased by 39% and the rate of imprisonment increased by 20 per cent from 141 to 169 per 100,000 of the adult population with much of this increase accounted for by the increase in remand (ABS 2008); translating then into higher rates of sentenced prisoners with around 35% being re-incarcerated in two years and around 70% reincarcerated at some time in their lives – a cycle of self reproducing higher imprisonment rates. This increase in the rate demonstrates of course that the prison population is increasing at a significantly faster rate than is the general Australian population. Census counts mask the number of persons who flow through the prison system each year. As the majority of prisoners (sentenced and unsentenced) are incarcerated for less than 12 months, far more than the 27,000 counted on census night flow through the system with estimates at around 45,000 persons flowing through annually (Baldry et al 2006). The national census

1 Ass. Prof. School of Social Sciences & International Studies, Associate Dean (Education), Faculty of Arts & Social Sciences UNSW. Email: e.baldry@unsw.edu.au 1 Ass. Prof. School of Social Sciences & International Studies, Associate Dean (Education), Faculty of Arts & Social Sciences UNSW. Email: e.baldry@unsw.edu.au

Australia Imprisonment rates (ABS (ABS 2008)

The situation for more vulnerable able groups, in particular women, Indigenous person rsons and persons with mental health disorders and cogn ognitive disability, is markedly worse when compare pared with the general prison population. In this same per period, Indigenous people (male and female) increas reased from 16 per cent of the prison population to 24 per c per cent. The rate of imprisonment for Indigenous peo people is 13 times more than for the non-Indigenous popula pulation (age standardized rate) (ABS 2008).

Ratio of Indigenous to Non-Indigen igenous Age Standardised Rates of Imprisonment (AB t (ABS 2008)

Although the actual number of women prisoners remains small compared to men their proportion has been increasing. Over this decade (1998-2008) the number of women prisoners increased by 72 per cent compared with 37 per cent for men, increasing their imprisonment rate from 16 to 24 prisoners per 100,000 adult women (ABS 2008). But incarceration rates for Indigenous women have increased more rapidly than for Indigenous men and the increase for Indigenous women has been far greater than for non-Indigenous women. The most recent longitudinal comparison was made in 2006 when the proportion of Indigenous women prisoners had increased from 21 per cent in 1996 to 30 per cent in 2006 of all women prisoners (ABS 2006). The most recent rate of Indigenous women’s imprisonment available is 364 per 100,000 of adult Indigenous females compared with 16 for non-Indigenous females (ABS 2008). The Australian Aboriginal and Torres Strait Islander Social Justice Commissioner has severely criticized the over-representation of Aboriginal people and Aboriginal women in particular, in prison (Calma 2005). Well over a decade ago Cunneen and Kearley (1995:88) had pointed out that the increase in Aboriginal imprisonment had impacted disproportionately on Aboriginal women.

There is no longitudinal data on rates of persons with mental health disorders (MHD) and cognitive disability (CD) in prisons in Australia. Mental health disorders include psychosis, affective and anxiety disorders, and cognitive disability includes those with intellectual disability (ID) (<70 IQ) and with borderline ID (>70 but <80 IQ). Nevertheless the perception amongst correctional authorities and service providers is that their numbers and proportions have increased over the past 2 decades (Office of the Public Advocate 2004; White & Whiteford 2006). Persons with these disabilities are clearly significantly over-represented amongst prisoners when compared with the general population with rates 3 to 6 times higher (Butler et al 2006). Persons with CD who have comorbidity (CD and a mental health disorder) and/or dual diagnosis (CD and alcohol or other drug problem) are even more likely than those with mental health or cognitive disability alone, to be caught in the imprisonment cycle (Dowse et al 2009; Hobson & Rose 2008:12). Women with mental health disorders are more highly over-represented amongst the prison population than men (Butler et al 2003). In NSW the evidence is that overall people with MHD and CD are convicted and imprisoned for lower level offences such as theft and road traffic/motor vehicle regulatory offences; justice offences (i.e. breaching criminal justice orders); acts There is no longitudinal data on rates of persons with mental health disorders (MHD) and cognitive disability (CD) in prisons in Australia. Mental health disorders include psychosis, affective and anxiety disorders, and cognitive disability includes those with intellectual disability (ID) (<70 IQ) and with borderline ID (>70 but <80 IQ). Nevertheless the perception amongst correctional authorities and service providers is that their numbers and proportions have increased over the past 2 decades (Office of the Public Advocate 2004; White & Whiteford 2006). Persons with these disabilities are clearly significantly over-represented amongst prisoners when compared with the general population with rates 3 to 6 times higher (Butler et al 2006). Persons with CD who have comorbidity (CD and a mental health disorder) and/or dual diagnosis (CD and alcohol or other drug problem) are even more likely than those with mental health or cognitive disability alone, to be caught in the imprisonment cycle (Dowse et al 2009; Hobson & Rose 2008:12). Women with mental health disorders are more highly over-represented amongst the prison population than men (Butler et al 2003). In NSW the evidence is that overall people with MHD and CD are convicted and imprisoned for lower level offences such as theft and road traffic/motor vehicle regulatory offences; justice offences (i.e. breaching criminal justice orders); acts

In summary the picture for all these groups of people is one of cycling around in a liminal marginalised and fluid community-criminal justice space (Baldry et al 2006; Baldry et al 2008a). When not in prison, most are living chaotically, are either homeless or in marginal and poor housing and are under police and community corrections surveillance resulting in rapid re-arrest; and when they are in prison they are often in remand or on very short sentences and living in highly structured settings (Baldry et al 2006). This space is liminal in that it is both in and between the outside community and the longer term prison sentence setting; it is marginal in that it does not afford access to stable support and services in either place and in fact promotes serial institutionalisation. It is a combined marginal community and marginal criminal justice fluid space in which many such vulnerable persons are caught. Peacock (2008) more recently, has interpreted this space in relation to the net-widening effect of current criminal justice policies on women, as a ‘third space’, an autonomous space. This interpretation though has not taken account of the work over the past decade suggesting a different understanding, one in which this space is not autonomous but is both within and in between community and prison, and is negatively dependent upon, created and controlled by interaction amongst human service and criminal justice agencies.

Persons cycling in this space are invariably searching for safe structured spaces and support that have been lacking in their lives (Dowse et al 2009; Baldry et al 2008). Appallingly the prison is often the only place that provides that (Baldry et al 2006). These persons make up a very large proportion of short term prisoners and account for a large number of the flow through prisoners discussed earlier.

Explanations for the increase Various explanations have been posited for the increase in prisoner rates. It has long been recognised that Australian Indigenous peoples are the subject of racism and have suffered racist treatment in all aspects of social and civil life, have been disadvantaged by having been dispossessed of their land, Explanations for the increase Various explanations have been posited for the increase in prisoner rates. It has long been recognised that Australian Indigenous peoples are the subject of racism and have suffered racist treatment in all aspects of social and civil life, have been disadvantaged by having been dispossessed of their land,

Women it is argued have higher use of drugs and have been committing more serious and violent crime resulting in higher rates of prison sentences than previously but they are also being impacted by harsher sentencing regimes (Gelb 2003).

Both internationally and in Australia deinstitutionalisation of persons previously held in psychiatric institutions and the closure of these institutions in favour of treatment and support in the community, has been blamed for the increase in persons with MHD in prison (Belcher 1988; Aderibigbe 1996; Harrington 1999). It has been argued for some time that resources to support those with more complex needs and challenging behaviours have not been transferred to community mental health services, and that services either are unable or refuse to work with this group leaving them to become homeless, offend and come to the notice of police (Rose et al 1993).

A large number of policy and legislative changes over the past 20 years have had negative and disproportionate effects on Indigenous persons, those with MHD and CD and women who are poor, disadvantaged and racialised (Australian Prison Project 2009; Pratt et al 2005; NSW Legislative Council Select Committee on Mental Health 2002; NSW Legislative Council Inquiry into the Increase in Prisoner Population 2001). Policy and legislation has been strongly influenced by the risk aversion approach, sometimes dubbed ‘actuarial justice’ (Kemshall 2003). Although as O’Malley (2008) points out, risk management can be used positively such as in a harm minimisation approach, Australian criminal justice has favoured pre-emptive police attention and incarceration. Such an approach tends to lead to increased rates of persons held on remand, increased breaching of parole and longer sentences.

Although these explanations illuminate the phenomenon of the growth in the prison population further exploration in relation to vulnerable groups bringing together analyses of patriarchy, colonialism, Although these explanations illuminate the phenomenon of the growth in the prison population further exploration in relation to vulnerable groups bringing together analyses of patriarchy, colonialism,

Patriarchy Lerner (1986) in her innovative thesis regarding the creation of patriarchy, argued that the initiation of the subjugation and oppression of women in pre- and early historical times began with the exchange and ownership of women for their reproductive capacity, through which private property was eventually created (Lerner 1986:6-10). Over generations this structured ownership of one group by another led to the development of slavery (of both males and females), class structure (relegating both males and females to levels on the hierarchical ladder), male god(s) becoming pre-eminent and eventually the entrenchment of this increasingly sophisticated ideology of patriarchy as the framework in which archaic states developed and operated (Lerner 1986:36-53). Males gained their class position by their relation to the means of production and females by their relationship to males. This also was the responsive and adaptive template for the creation of the ‘western’ state and has been the dominant social and political paradigm in the west for thousands of years. Lerner argued persuasively from archaeology, early religious and legal manuscripts and recordings and works by theorists like Levi-Strauss, Meillassoux and Engels to support her theory. She also argued that patriarchy has been and is the dominant social, economic and political paradigm maintaining itself by adaptive transformation and spawning a range of successful supporting ideologies and frameworks.

Most relevant to the matter at hand, an implication of Lerner’s theorising is that colonialism was not just tightly affiliated with patriarchy, but that it was (as evidenced in ancient empires) and is an economic & political manifestation of patriarchy. This opens up a broader field in which to explore vulnerable groups in the criminal justice system in Australia.

Colonisation This patriarchal-colonial paradigm was transported, along with the convicts, to Australia by the invading British in 1788. Indigenous Australians were subjected to this new social, economic and political structure from the moment Captain Arthur Phillip planted the colony at Sydney Cove. Indigenous Australians were Colonisation This patriarchal-colonial paradigm was transported, along with the convicts, to Australia by the invading British in 1788. Indigenous Australians were subjected to this new social, economic and political structure from the moment Captain Arthur Phillip planted the colony at Sydney Cove. Indigenous Australians were

Payne (1992) argued that Aboriginal women’s relationship to western law

was founded in Australia’s colonialism in which patriarchal colonial culture dismissed Aboriginal women’s high status and assumed that in Aboriginal society women were subordinated in the same way that they were in British society (Payne 1992:68).

She pointed out that this attitude continued into the current era with the dismissive approach to the large number of Aboriginal women being murdered in the Northern Territory (in domestic violence contexts) whilst the Aboriginal Deaths in Custody Royal Commission was investigating a similar number of Aboriginal men’s deaths in custody (Payne 1992:68).