Australian Rules: The Rise of Rights and the Demise of the Right

Over a number of years there has been a public debate in Australia over the place of legal rights in the struggle for Indigenous economic, social and cultural gains. Most Indigenous leaders have called for a rights agenda as a solution to Indigenous disadvantage. However, one leader has been a vocal critic of this approach. This paper considers the possibility that although the debates may fundamentally represent different views as to how best to improve conditions for Indigenous Nations, they also represent differing approaches to harnessing the support of mainstream Australia in a politically conservative environment. In coming to this position, I am reminded of the arguments put by proponents of the Critical Legal Studies movement in US, that rights are merely abstractions, and the counter by Patricia Williams, a Critical Race Theorist, that as a result, they can be framed in a variety of ways and can take the form required by the community in which they are found. In Australia, minority groups must find an indexically-open vehicle, fitting to the Australian rhetorical structure(s), to represent their struggle for economic, social and cultural rights. Tracey Summerfield is a white woman born in Perth, Western Australia. Thanks to Stephanie Monck, a Kungarakan/Warramungu woman from the Northern Territory, who provided assistance and feedback on an earlier version. The views expressed here are, of course, those of the writer alone.     

Criminologists,duct tape,and Indigenous peoples: quantifying the use of silencing research methods

A recent quantitative evaluation of mainstream criminological research found that there is a dearth of research on “Indigenous peoples in the criminal justice context” conducted in Australia, Canada, New Zealand, and the United States and published in elite criminology journals while these nations continue to incarcerate Indigenous peoples at markedly disproportionate rates. Although the silence prohibits public attention to this social issue, counter-colonial critics have mostly focused on criminologists who deliberately marginalize Indigenous peoples through use of inappropriate research methods. This study is a first attempt to quantify the use of “silencing research methods” in contemporary mainstream criminology. It involves a comprehensive review of research published in elite criminology journals over the past decade (2001–2010). The findings reveal that although mainstream criminologists generally prefer non-silencing research tools, they primarily employ silencing research methods when studying Indigenous peoples. Also, studies that focus on Native American peoples use silencing research tools more often than studies on other disproportionately incarcerated social groups, i.e., African and Hispanic Americans. The study concludes that by using “silencing research methods,” elite mainstream criminology has contributed to the marginalization of Indigenous peoples to varying degrees in all four countries over the past decade.     

Humiliation,Justice and the Play of Anxiety in Competing Jurisdictions

In colonial nations, such as the land called Australia, the two registers of settler and Indigenous jurisdictions compete at the level of symbolic certainty. In Lacanian psychoanalytic theory neither can arrive at perfect symbolisation but the struggle and the proximity to their arrival can evoke anxiety. What insists to keep this anxiety at bay, in non-Indigenous Australia, is what Jacques Derrida calls justice. As an impossible object, similar to the Lacanian object petit a, justice must be interminably animated to hold this object of desire in play. Humiliation of Indigenous people in Australia is, I argue in this article, one mode of this play. I interrogate the psychoanalytic discussions of anxiety by Freud and Lacan to consider firstly what might be the cause of anxiety for contemporary non-Indigenous Australians and secondly how this anxiety is ‘played out’ on the bodies of Indigenous people through practices of humiliation. As one example of this work of humiliation I consider several scenes of police practice in the Sydney suburb of ‘Redfern’ from the 1991 documentary Cop it Sweet.     

Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: can an intercultural form of restorative justice make a difference?

Aboriginal youth with Foetal Alcohol Spectrum Disorder (FASD) are overrepresented in the justice system. FASD results from prenatal alcohol exposure, and may lead to cognitive, social and behavioural difficulties that increase susceptibility to contact with the justice system. This paper explores the potential contribution of restorative justice in creating diversionary options for Aboriginal youth with FASD, and related cognitive impairments, to prevent enmeshment in the justice system. The lesson from work in Australia and New Zealand is that restorative justice and Indigenous justice are different, but not irreconcilable, projects. We suggest that there is the potential for creating rich intercultural engagement spaces ‘in between’ restorative practices and Indigenous processes: provided that restorative justice – as an essentially Eurocentric paradigm of the Global North – does not attempt to colonise Indigenous justice. An appropriate model would have Aboriginal people engaged in the planning and management of diversionary options, with greater focus on diversion into place-based, Aboriginal owned and managed services. Restorative justice needs to engage with the historical demands of Indigenous peoples for their land and their way of life; though constantly imperilled by forces of neo-liberalism and colonialism, Indigenous peoples remain resilient and provide a vision of an alternative to Euro-modernity.     

Indigenous Peoples and Sustainable Development Subprojects in Brazilian Amazonia: The Challenges of Interculturality*

The implementation of sustainable development projects for Indigenous peoples in Brazilian Amazonia by the Pilot Program for the Protection of Brazilian Tropical Forests has generated new types of intercultural relations between the dominant society and local Indigenous communities. This article analyzes sixteen of these projects focussing upon (1) sociocultural relations, in which two different administrative and political systems come into contact and require the adoption by Indigenous peoples of a Western “project” format to meet their social and environmental needs, and (2) interscientific relations, whereby unresolved legal issues concerning the use of and access to Indigenous knowledge by members and institutions of the wider society are exacerbated.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Indigenous People,Organized Crime and Natural Resources: Borders,Incentives and Relations

This article explores the relationship between the Emberá–Wounaan and Akha Indigenous people and organized crime groups vying for control over natural resources in the Darién Gap of East Panama and West Colombia and the Golden Triangle (the area where the borders of Laos, Myanmar (Burma), and Thailand meet), respectively. From a southern green criminological perspective, we consider how organized crime groups trading in natural resources value Indigenous knowledge. We also examine the continued victimization of Indigenous people in relation to environmental harm and the tension between Indigenous peoples’ ecocentric values and the economic incentives presented to them for exploiting nature. By looking at the history of the coloniality and the socioeconomic context of these Indigenous communities, this article generates a discussion about the social framing of the Indigenous people as both victims and offenders in the illegal trade in natural resources, particularly considering the types of relationships established with dominant criminal groups present in their ancestral lands.

     

Child Maltreatment and Intimate Partner Violence Among Indigenous and Non-Indigenous Canadians

Indigenous peoples of Canada face an elevated risk of intimate partner violence (IPV) compared to non-Indigenous Canadians. Few empirical studies have been conducted to understand this elevated risk, and none have examined child maltreatment (CM) as a predictor. This study used data on a nationally representative sample of 20,446 Canadians to examine CM and proximal risk factors for IPV against Indigenous and non-Indigenous respondents. Results showed that Indigenous respondents had greater risk of experiencing both CM and IPV. All three forms of CM (exposure to violence, direct physical and/or sexual abuse victimization, as well as both exposure and direct victimization) were associated with increased odds of IPV in adulthood. CM along with proximal risk factors accounted for Indigenous peoples’ elevated odds of IPV (AOR = 1.62; NS). These results were consistent with the theory that Indigenous peoples’ elevated risk of IPV is largely due to effects of historical trauma from past and continuing colonization. Reducing Indigenous peoples’ disproportionate risk of IPV requires efforts to reduce CM and its negative developmental effects among Indigenous peoples as well as resolving the manifestations of historical and contemporary trauma within Indigenous society.     

Contemporary Indigenous Art,Resistance and Imaging the Processes of Legal Subjection

Postcolonial discourse is incredibly diverse and postcolonial art in Australia has numerous critical modes. This paper describes an approach in Contemporary Indigenous art that attempts a critique of the law from within the law rather than outside of it. It takes a radical form of over-proximity, rather than avant-garde distance, and finds the gap and failure in law’s attempt at creating legal subjects of us all. In the work of Gordon Bennett, Danie Mellor and the duo Adam Geczy and Adam Hill, there is a working through the political and legal ramifications of the Indigenous subject in contemporary Australia. The focus on processes of initiation and subjectivization, or what Althusser called “interpellation” and show the effects of this interpellation in the Indigenous subject and offer modes of resistance. The artists are informed by Lacanian notions of subjectivization and utilise this approach to semiotics and power as the starting point for their critique.     

Theoretical Problems of the Development and Convergence of Nations

The truly socialist solution of the nationality question in our country — the abolition of all forms of inequality of nations and the establishment of friendship and fraternal cooperation among peoples — is of worldwide historical importance. The scale and significance of this question are testified to if only by the fact that today there are about 160 states in the world and more than 2,000 nations, nationalities, and ethnic groups. Some linguists hold that the peoples of the earth express themselves in over 7,000 different languages (this probably includes dialects). In any case, it is quite obvious that most — one might say the overwhelming majority of — nations, peoples, and ethnic groups live in multinational states. On this basis alone, the nationality question occupies a very important place in the life of society.     

Unsecured lending and the indigenous economy in Australia and South Africa

Consumer credit is closely regulated in both Australia and South Africa. Nevertheless, unsecured lending often results in financial hardship in low‐income communities. One aspect of this picture is the impact of the consumer debt burden on the Indigenous economy, which is disproportionately affected by poverty in both countries. Here we juxtapose the comparative regulatory regimes and then contextualize the law using an inter‐disciplinary account of each Indigenous economy. We find through this law‐in‐context comparison that neither Australia nor South Africa has fully resolved the problem of Indigenous financial hardship. This mutual failure is confirmed by the recent Kobelt decision of the High Court of Australia and the drastic measures enacted in the South African National Credit Amendment Act 2019. One positive lesson that South Africa provides is that accommodating the Indigenous economy in financial regulation can promote and empower that sector.     

Restorative justice: the indigenous justice system

Dramatically different beliefs about justice will produce dramatically different methods for achieving justice. The beliefs underlying the traditional Indigenous restorative justice systems, systems that dramatically differ from the European-based system practiced in the USA are presented. The discussion highlights the legacy of colonialism for tribal communities and the resilience and creative resistance that have continued to characterize the spirit and ingenuity of Indigenous peoples.     

A two‐tier conception of European Union peoplehood: A realist study of European citizens’ bonds of collectivity

The European Union (EU) struggles to legitimate its rule. This realist study develops a conception of peoplehood in the EU polity, because, in contemporary Europe, ‘the people’ remains the sole source of political legitimacy. From a realist perspective, a conception of peoplehood should yield a coherent story why EU citizens should accept, or at least acquiesce, to EU rule. This study explores the possibility of a pluralistic conception being either multi‐layered, multi‐faceted or both. Taking a practice‐dependent approach, I first analyse the institutional systems that structure relationships between EU citizens. I secondly propose conceptions of EU citizens’ bonds of collectivity. Thirdly, I develop a novel two‐tier conception of EU peoplehood in which individuals remain bound together as national peoples, while these peoples are in turn united by commercial and liberal bonds. I submit that this conception can lay the foundation for a convincing story to legitimate EU rule.     

Indigenous Australians: Language, and the Law

Indigenous peoples face a number of hurdles intaking cases to Australian law courts. In thecase that the social and economic problems canbe overcome, they face problems related to theintellectual structures of the court and thelanguage and philosophical beliefs that thecourt systems are based on. Derrida shows thatWestern metaphysics privileges speech overwriting, and this counts against indigenouscultures in which narrative knowledge is a formof writing. Due to this privileging, there is adifferend involving the courts and indigenouspeoples which makes the achievement of justicedifficult in the legal arena in Australia. Thisarticle questions whether the courts are thecorrect bodies to deal with indigenous issues.The achievement of justice is made moredifficult again by the truth-producing effectsof legal decisions, which render native titleas a weaker form of property right. Finally,indigenous Australians are caught in a catch-22situation, in which in order to receivejustice, they must Westernise their thought toadapt to the court system, and yet not allowany Westernisation of their culture. Such aWesternisation can be forced upon indigenouspeoples by the truth-producing effects oflanguage.     

Popping the cultural bubble of violence risk assessment tools

Violence risk instruments are administered in medico-legal contexts to estimate an individual’s likelihood of future violence. However, their ostensible limitations; in particular their mono-cultural and risk-centric composition, has drawn academic attention. These concerns may facilitate erroneous risk evaluations for certain non-white populations. Yet it remains unaddressed how cultural differences will be appraised in a risk assessment framework and which specific cultural factors should be considered. Provisions under the Canadian Criminal Code allow for Gladue Reports, to be sought by judicial officers prior to sentencing Indigenous people. Gladue Reports provide insights into an Indigenous person’s unique circumstances that may have led to their offending as well as community-based options for rehabilitation. We proffer that there may be value in augmenting the risk evaluation with culturally relevant Gladue style considerations identified by relevant Indigenous people to provide a more holistic account of an Indigenous individual’s circumstances.     

On Desire,Transcendence and Sacrifice

This contribution offers a careful but critical reading of Johan van der Walt’s theory of post-apartheid law as sacrifice and social struggle. By placing a theoretical emphasis on the inevitability of violence and the impossibility of love, Van der Walt’s thesis risks denying the possibility of thinking the world in a different, way. In order to reconceive the terms of community and horizontality in post-apartheid South Africa, there is a need to move beyond thinking the world as constructed according to tension, conflict and self-preservation at the expense of understanding and compassion. In developing a critique of law as sacrifice, I utilise Panu Minkkinen’s call for justice as the beyond of law that goes beyond the mere battle for recognition. I also address his view that the unappeasable desire of metaphysics entails the recognition that there is hope for the future and the recovering of transcendence as otherness. Secondly, I use Louis Wolcher’s work on Zen Buddhism to argue that any obsession with conceptual purity, as is glimpsed in Van der Walt’s work, ignores the impossibility of setting down the immutable and universal truth for all time. In other words, however attractive a theory of law as sacrifice may be, it is only one perspective amongst many others. Lastly, I contrast Van der Walt’s work with that of Luce Irigaray, and in particular her formulation of ‘horizontal transcendence’ that makes possible relations ‘between two’.

Predictive accuracy of static risk factors for Canadian Indigenous offenders compared to non-Indigenous offenders: implications for risk assessment scales

ABSTRACT

The over-representation of Indigenous offenders in Canadian prisons highlights the importance of research on the generalizability of potential static risk factors for this group. The current investigation examined whether 87 static indicators currently assessed in Canadian federal prisons were differentially present and related to outcomes (revocations, general recidivism, and violent recidivism) for Indigenous (n?=?1500) and non-Indigenous (n?=?6684) male federal offenders. The follow-up was eight months for revocations and five years for any/violent recidivism. Indigenous offenders scored significantly higher risk than non-Indigenous offenders on the majority of the indicators (particularly criminal history indicators). Generally, most criminal history indicators and some offence severity indicators predicted revocations, general, and violent recidivism for Indigenous offenders; however, several of the indicators had significantly lower accuracy for Indigenous offenders (particularly criminal history indicators). Overall, Indigenous offenders are a higher risk population and several static risk indicators do not perform as well for this group as for non-Indigenous offenders. Nonetheless, there were numerous static indicators that did predict outcomes for Indigenous offenders. The current findings suggest that it is possible to meaningfully assess static risk for recidivism among Indigenous offenders.     

Psychologising Jekyll,Demonising Hyde: The Strange Case of Criminal Responsibility

This paper puts the famous story of Jekyll and Hyde to work for a specific analytic purpose. The question of responsibility for crime, complicated by the divided subjectivity implicit in Mr. Hyde’s appearance, and illuminated by Robert Louis Stevenson’s grasp of contemporary psychiatric, evolutionary and medical thought as promising new technologies for effecting a distinction between criminality and innocence, is key to the interest of the story. I argue that Jekyll and Hyde serves as a powerful metaphor both for specifically late Victorian perplexities about criminality and criminal responsibility, and for more persistently troubling questions about the legitimacy of and practical basis for criminalization. A close reading of the story illustrates the complex mix of elements bearing on criminal responsibility-attribution, and—incidentally—helps to explain what is wrong with the influential argument that, by the end of the nineteenth Century, attributions of responsibility in English criminal law already rested primarily and unambiguously on factual findings about the defendant’s state of mind. Far from representing the triumph of a practice of responsibility-attribution grounded in the assessment of whether the defendant’s capacities were fully engaged, I argue that the terrain of mental derangement defences in late nineteenth Century England helps us to understand that longer-standing patterns of moral evaluation of character remained central to the criminal process. And precisely because ‘character’ remained key to the institutional effort to distinguish criminality and innocence, the ‘terror’ of Stevenson’s story resides in its questioning of whether either scientific knowledge or moral evaluation of character can provide a stable basis for attributions of responsibility. In conclusion, I will also suggest that Stevenson’s tale can help us to make sense of the resurgence of overtly ‘character-based’ practices of responsibility attribution in contemporary Britain and the United States, which themselves reflect a renewed crisis of confidence in our ability to effect a ‘dissociation’ between criminality and innocence.     

Corporate Colonialism and the “Crimes of the Powerful” Committed Against the Indigenous Peoples of Canada

Canada is both a capitalist and colonial society, one founded on the seizing of Indigenous lands for capitalist purposes. In the process, a variety of “crimes of the powerful” were committed, including the theft of Indigenous lands, the forcible confinement of Indigenous people onto reserves, and the subjection of Indigenous children to physical and sexual assaults via the residential school system. In more recent times, the corporate quest for extractive resources has created further harms for Indigenous communities. The lives of too many Indigenous people in Canada are now contoured by complex poverty, Indigenous children are over-represented in the child welfare system, and Indigenous adults are over-incarcerated in prisons and jails. Using a “crime” lens, this paper brings an awareness of Canada as a capitalist and colonial society—conceptualized here as “corporate colonialism”—to the foreground. In the process, the various manifestations of the “crimes of the powerful” against the Indigenous peoples of Canada are exposed.     

Regulatory Pragmatism,Legal Knowledge and Compliance with Law in Areas of State Weakness

The literature suggests that compliance with law is unlikely in areas of state weakness absent additional state capacity. Utilizing three novel data sets collected in adjacent districts in India and Nepal, this article demonstrates that weak states can significantly increase compliance by fostering accurate legal knowledge—something the literature often assumes is widespread. This assumption is problematic because principal–agent problems prevent many weak states from behaving consistently; target populations often lack education and competent legal advice and struggle to learn about the law via observation. States that employ regulatory pragmatism, however, may overcome this challenge; they do so by designing implementation strategies for on‐the‐ground realities. I investigate two such efforts—delegated enforcement and information dissemination through local leaders. The data indicate that strategies consistent with regulatory pragmatism, in contrast to those that are legally doctrinaire or deterrence based significantly increase legal knowledge and compliance, even where the state is locally weak.