Mia Dambach LLM thesis (awarded 2007) 'A critical analysis of shifting paradigms within the juvenile justice system, ideologically and in practice.'

Abstract

In the early 1990’s, numerous law reform proposals for the future of the Juvenile Justice System in New South Wales (NSW) were produced with the overarching principle being the rehabilitation of the child. Since 1994, there has been no comprehensive attempt to analyse the NSW Juvenile Justice System in its entirety. The thesis aims to fill this gap, by examining the shifting paradigms across the Juvenile Justice System from 1995 to 2005.

This thesis argues that whilst the rehabilitative and benevolent attitude of the Juvenile Justice System in NSW remains dominant, there have been gradual and systematic encroachments to this approach. The thesis utilises Garland’s Culture of Control to explain the NSW Government’s shifting approach.

The thesis contends that the NSW Government now makes policies and practices in a ‘culture of control’. This culture is cultivated by the media, especially the tabloid press by their reporting (and often non-reporting) of certain incidents and presentation of juvenile crime as being ‘out of control’. The Government then feels pressured to respond and do so with hasty and more controlling mechanisms, without supporting research and with the hope of gaining political support.

This pattern of decision making can be observed across the entire Juvenile Justice System during 1995 to 2005. An inter-disciplinary approach covering both legal analysis of existing law and sociological analysis of changes in the law over time is used to study broad policy initiatives in the following specific areas in NSW:

Punitive introduction of offences targeting children
Punitive practice of police powers applied to children
Punitive application of Bail Act to children
Punitive trends in sentencing children
§ Punitive conditions of detention of children

The thesis concludes that these more controlling mechanisms are often unjustifiably punitive and result in numerous contraventions of international law. These contraventions include the principles of best interests, participation of the child, the well being of the child, proportionality, detention as a last resort, lack of attention to diversionary principles and various forms of discrimination. In the context of these breaches, the thesis provides numerous law reform proposals for the juvenile justice system more consistent with international law.

John Boersig: PhD thesis (to be conferred in 2008) i'TOWARDS A NEW FRAMEWORK FOR SENTENCING: BLENDING INDIGENOUS AND NON-INDIGENOUS NOTIONS OF JUSTICE'.

Abstract

This thesis is an analysis of the impact of the sentencing process upon Indigenous people in Australia. In comparison to non-Indigenous people, there is a continuing gross over-represented of Indigenous people in the criminal justice system; the corollary is high rates of incarceration and deaths in custody. Some explanation for this situation can be found in the significant socio-economic gap between Indigenous and non-indigenous people, while more atomistic approaches point simply to criminal offending as individual transgression; others urge an historical appreciation of the long-term impact of colonisation as a root cause. Ultimately, gross incarceration rates are indicative of the systemic disadvantage faced by Indigenous people in the criminal justice system, and present an urgent problem for government.

Over the past 10 years a wave of initiatives, mostly based around diversion from or alternatives to the orthodox sentencing process, have been trialed as part of a possible solution to this over-representation of Indigenous people in the criminal justice system. Many of these initiatives use processes that either target Indigenous offenders or seek to enhance the participation of the wider Indigenous community in the sentencing task. Crucially, this thesis locates these initiatives within an orthodox sentencing continuum. In other words, all solutions sought through reform to sentencing take place within sentencing continuum in the state’s criminal justice system.

My thesis raises questions about the notion of justice, and the role of punishment and sentencing - sentencing is a deliberative process that occurs in courts and in diversionary or alternative sentencing forums. The continuing disadvantage of Indigenous people imputes the failure of sentencing reforms, and calls for an analysis that moves beyond orthodox assumptions. I have turned to post-colonial theory is a radical methodology that moves Indigenous people from the margins to the centre of the analysis. It offers an incisive conceptual framework by exposing the underlining relationships within colonial power - between oppressor and oppressed - that find re-inscription in contemporary Western society; it is this framework that provides the basis for critical analysis and a foundation for effective law reform.

Accordingly, I analyses sentencing from an Indigenous perspective that takes as a starting point the colonisation of Australia; a nexus is drawn with the continuing over-representation of Indigenous people in the criminal justice system. I show that the present relationship between Indigenous people and the state is a re-inscription of colonial social relations, in what might now be termed the neo-colonial state.

In this context the possibilities for addressing Indigenous disadvantage through reform of the sentencing process, both within and beyond the courts, is examined. This calls then, for a detailed exploration of the most recent innovation in this area, ‘restorative justice’. An aligned project is the exploration of the idea and utility of Indigenous Justice. Australia is illustrative of the world-wide trends and provides a focus for exploring these issues. Comparison is also made with a number of other Western countries.

My thesis makes a number of significant conclusions about sentencing reform. Fundamentally, I found that reforms should effect a transfer of authority within the sentencing process from the state to Indigenous people. I establish that an approach to law reform, grounded in the notion of Indigenous sovereignty, is essential to the de-colonisation of the sentencing process. In this way a unique sentencing framework, that blends co-equally Indigenous and non-Indigenous structures, is proposed. And it is concluded that this new framework is best placed to find solutions to the over-representation of Indigenous people in the criminal justice system. Indigneous empowerment, and cultural and legal pluralism will be key to the success of reforms, and strategies must be understood within a wider movement towards a postcolonial society.