In Australia, as well as countries like New Zealand18, Canada and other nations with colonial histories, our knowledge, experience and understanding of criminal justice and juvenile justice is intimately bound with the colonial experience and the violent dispossession of indigenous peoples from their land, as well as the subjugation of traditional forms of knowledge and ways of life. According to Blagg (2008), criminal justice has played a constitutive role in mediating between the Aboriginal and non-Aboriginal worlds, drawing justice and policing systems into a broader set of control practices than simply those concerned with crime and in so doing they remain ‘nodal points in a broader fabric of social relationships [original emphasis] (p. 2). And, as Hogg (2001) argues, race and eugenics have been central to the history of policy development in colonial settler societies.
In order to develop a comprehensive and appropriate understanding of juvenile justice it is important to recognise that most of the mainstream conceptual schema outlined in the early part of this chapter have emerged from what Connell (2007) has termed, the Metropole that is, selected countries of the northern hemisphere, where the formulation of knowledge has assumed a superior position in determining global understanding of issues and experiences. Agozino (2003) has critiqued key criminological theories in a similar vein.
3. Understanding juvenile justice As Blagg points out, mainstream criminological theories generally ‘operate without a theory of colonialism and its effects’ (2008, p.11)19. Cunneen argues that
criminology stands out from other disciplines such as law, arts and literature in the way that it has not yet come to grips with postcolonial perspectives (2011). Cunneen points out that it is not completely absent from criminology and he provides examples of a series of writers that have examined the intersections of race, criminalisation and policing, but he argues they have tended to be centred on understanding the relationship of the diaspora of former colonised peoples to the colonial power, after migration to the colonial countries of origin and as such remain distinctly Eurocentric (2011)20. As such, Cunneen argues, the criminological imagination begins to falter when confronted with ‘genocide and dispossession, and with peoples who demand that their radical difference, their laws and customs, their alterity to the west be recognised’ (2011, p. 251).
According to Cunneen (2011) there is an emerging criminological literature that is beginning to incorporate post-colonial theories into discussions of crime and justice (see his discussion for details). In addition, the work of Stubbs (2012) and Cunneen and Stubbs (2004) on women as domestic violence and homicide victims; Baldry and Cunneen (2011) on policing and prisons integrate the impact of the history of intersections of colonial gendered and raced relationships in Australia with analyses of contemporary crime and governance. The work of indigenous legal academics like Larissa Behrendt (2003; and Behrendt, Cunneen & Libesman 2009) provide re- appraisals of legal theory and justice within a neo-colonial framework and have included critiques of juvenile justice.
Cunneen calls for the development of a postcolonial criminology, which would recognise the enduring and ongoing effects of ‘colonialism on both the colonised and the colonisers’ (2011, p.249). And, a postcolonial perspective would draw attention to ‘broader questions of social and political power, to matters of legitimacy, political authority and consent (2011, p.264). Cunneen also proposes that post colonial criminology could offer insights for policy engagement in particular in drawing attention to the failure of criminal justice policies to actively
19 Platt in a 2008 revision of his own work the ‘Child Savers’ recognizes that juvenile justice histories have
tended to ignore the intersections of race and class.
20 Mike Brogden’s work on colonial policing in Ireland is probably one of the first texts to incorporate an
engage with marginalised and racialised communities, and an inability to engage with alternative experiences and understandings of criminal justice (2011, p.264). Blagg contends that to understand the extraordinary levels of overrepresentation of Aboriginal people in the contemporary criminal justice system both as offenders and in victimisation rates, there needs to be nuanced and variegated analysis that situates these phenomena within an historical framework formed by the process of historical dispossession, genocide and assimilation, and forms of resistance to these processes (2008, p.2).
Hogg (2001) discusses how colonial histories are different from Eurocentric ones. In his work on the history of penality in Australia, he outlines how they need to be explored in relation to the ‘history of regimes and cultures of racial segregations and governance in which indigenous people were coercively managed, for the most part outside ‘normal’ legal and penal institutions, until the third quarter of the 20th century’ (p.355). Hogg demonstrates how non-carceral punitive practices like rationing, segregation and forced removal were fundamental to colonial societies and that they persisted and permeated the development of criminal justice practices in ways that were not tolerated in non-colonial societies. Hogg describes how segregationist practices and policies, and proclamations that Aboriginal people were insanitary held a symbolic cultural message, reinforcing the understood boundaries between the ‘civilized’ and the ‘uncivilized’, between white settler families and Aboriginal people, and in the process normalised white settler behaviour, allowing for distinct policies and practices to be established for each group (2001, p.358). He argues that the resonance of these proclamations and practices such as the forced removal of children from their families continue to inform popular ideas and attitudes, and to some extent shape policy choices today (Hogg, 2001, p.363). Carrington and Pereira (2009) clearly articulate the legacy of these neo-colonial discourses and practices, and how they continue to influence contemporary policy. As they state:
Indigenous communities and families are still feeling the inter-generational effects of the removal of Aboriginal children from their communities – loss of parenting skills, loss of cultural integrity, the destruction of communal authority, and the ongoing management of their day to day lives through the welfare-penal welfare agencies’ high rates of child abuse, incarceration, deaths
3. Understanding juvenile justice in custody and criminalization of indigenous youths are, in this sense, direct legacies of the earlier forms of penal-welfarism that legitimated the stolen generations (Carrington & Pereira, 2009, p. 104).
The thesis recognises the neo-colonial relations are embedded in the institutions knowledge, policies and practices of juvenile justice and every day influences decisions taken.
3.11 Conclusions
O’Malley (1999) makes the point that ‘there is currently a bewildering array of developments occurring in penal policy and practice, many of which appear mutually incoherent or contradictory’ (O’Malley 1999, p. 176). Fergusson has also argued that any one time a multitude of discourses can inform policies and programs, as he states:
More often than not, more than one discourse can be detected in the rationale for a policy shift or a new piece of legislation. Different elements of the policy or legislation derive from different discourses (2007, p.181).
Other writers have made similar observations. For example, McAra (2010) refers to ‘a myriad of principles shaping policy discourse’ (p.287), and Carney (1985) in his analysis of Australian juvenile justice history highlights the fact that policies are ‘ an admixture of philosophy often conflicting, that remains in a state of flux’ and it is ‘only the emphasis that shifts’ (p.203). As Muncie and Hughes, (2004) explain, ‘….the history of youth justice is a history of conflict, contradictions and ambiguity and compromise’ (p.2).
The contradictions and conflicts in co-existing discourses can have important outcomes in policy development. For example, as Fergusson argues the pursuit of welfarist objectives through managerialist means will evoke critical contradictions in the values underpinning means and ends (2007). As Fergusson argues the rationales underpinning policy shifts and legislative reforms often embody partial and/or a variety of discursive and political philosophical approaches where ‘different elements of the policy or legislation derive from different discourses’ (2007, p.181). Fergusson warns anyone analysing policy that it is important not to take ‘any aspect of policy at value’ since they are made up of many constituent parts (ibid).
According to Fergusson, discourses of youth justice also need to be understood within their relationship to broader political philosophies, for example he argues ‘discourses of responsibilisation and managerialism have important historical traces to neo-liberalism in terms of the primacy of the individual and competitive pursuit of efficacy and efficiency, the rewards of excellence, the consequences of indolence etc’ as well as links with classical liberalism’ (2007 p. 181). At given moments these broader philosophies are also influencing other fields of public policy and politics. Using the words of Hall, Hill makes the point ‘politicians, officials, the spokesman for social interests and policy experts all operate within the terms of political discourse that are current in nations at a particular given time’ (Hall 1993, p.289 cited in Hill 2013, at p. 76). As James and Raine (1998) argue, legal principles are also seen to provide a constraint on the worst excesses of governments and, as Lacey says of the work of Ashworth on the criminal process, the norms and values of law and of justice are seen to provide a defence against pragmatic ill considered policy reforms and in particular the ‘political temptations of criminalisation as an electoral strategy’ (2012, p.13). James and Raine argue the administrative processes of the criminal justice system acted as ‘a brake on reform’ and were ‘a sieve through which proposed changes had to pass’ often confounding or confusing the intentions of neo-liberal developments (James & Raine 1998, p.47).
Fergusson also argues that the co-existence of different discourses and the way that they are presented applied and enacted need to be teased apart in order to examine the factors influencing the different stages of the policy process (2007, p.182). So for example, he argues that the public presentation of a policy may need to be politically acceptable, whereas how a policy is formulated in law or in a policy document can be different and, when presented and interpreted through the practice knowledge bases of lawyers, youth workers, police officers or magistrates, it can take on a different slant again. Each of these different stages of the policy process and the engagement of a range of policy actors creates disruptions in the discursive influence. Fergusson argues that these disruptions are mainly due to the tensions in political discourses and the disjunctures between political rhetoric, the codification of discourse into policies and programs, their implementation in practice coupled with the impact of the role of frontline staff (2007). These moments in the policy
3. Understanding juvenile justice process Fergusson argues provides the gaps, or as he calls them ‘fault lines’ where policies can evolve and be actively influenced by policy players (2007, p.186). Hartjen (2008) also argues that discourses, models or typologies of justice are rarely reproduced directly into practice ‘ they offer representations of reality that in practice are rarely observed (p.97). Hartjen identifies how justice outcomes are also the product of the input of the people, agencies and the institutions involved in policy development as well as the dynamics of the policy process itself. As Hartjen explains the disparate agencies engaged in juvenile justice are ‘at best, ill-co- ordinated, often at odds with one another, and just as motivated by considerations of turf, budget and professional interest’ (Hartjen 2008, p.94). McAra also emphasises that existing institutional traditions, policies and practices play an important role in mediating the impact of trends in discourse as she argues, youth justice systems are complex architectural phenomena and the variant principles, which underpin policies ‘do not always translate into institutional infrastructure in straightforward ways’ (2010, p. 28).
This chapter has identified from the existing literature the array of developments in youth justice and juvenile justice that shaped the policy landscape. It has argued that at any given moment multiple discourses, and techniques of governance can influence policy developments and decision-making at any one time. It suggests that the patterns of negotiated order (outlined in the introduction), the architecture of systems, and key people in the policy process provide the conditions of emergence in which a particular configuration of discourses can dominate the policy field at a particular historical moment. The analytical chapters of this the thesis traces which of the policy discourses; rationales and techniques of governance discussed above, appear to shape policy decisions during the study period and how and why this has happened.
The next chapter examines the impact of the media in the policy process, exploring the ways in which it has been to see play a role in setting policy agendas and brokering communication between politicians and the public.