Law & Justice

Publication Search Results

Now showing 1 - 10 of 13
  • (2022) Hopkins, Tamar
    Thesis
    This thesis investigates the meaning of racial profiling and its application in Australia. Drawing on the conceptualisation developed by Epp, Maynard-Moody and Haider-Markel that racial profiling is the disproportionate use of unjustified police power against racial and ethnic minorities, this thesis asks: does racial profiling exist in Australia? I develop three methodologies to answer this question. In the first, I apply four concepts developed by Canadian courts to existing Australian cases to determine whether they enable the disclosure of racial profiling. For the second strategy, I conduct a survey of 981 people from Victoria, Australia who the police have subjected to a vehicle, pedestrian or cyclist stop. Drawing again on Epp, Maynard-Moody and Haider-Markel, I classify their experiences into variables that, through regression analysis, I can use examine whether police engage in racial profiling. My third strategy, using the same survey data, tests whether police more frequently use particular tactics on specific racial groups. If so, these tactics could be said to correspond to racial profiling under a test devised by Canadian judge Morden JA. in R v Brown [2003] OJ 1251. The result of each strategy discloses the existence of racial profiling in Australia. Firstly, I find that racial profiling is likely to have impacted 12 Australian cases I examine through the lens of the Canadian common law framework. Consequently, to make racial profiling more visible, this framework provides a useful guide for the development of police powers law in Australia. Secondly, I find strong evidence (p<0.05) that police in Victoria subject people of Aboriginal, African, Pasifika and Middle-Eastern/Muslim appearance to unjustified police stops and unjustified post-stop conduct more frequently than white people. This finding demonstrates that pro-active policing methodologies in Victoria are racially discriminatory. My third finding is that there is strong exploratory evidence (p<0.05) that police use 12 tactics against specific racial groups more frequently than white people. These findings start to reveal the institutionalised mechanisms that police use to target racial groups in Australia. As the first study of this kind in Australia, this thesis makes a major contribution to understanding racial profiling in Australia and how it may be evidenced.

  • (2023) Gordon, Tahlia
    Thesis
    The organisation of professions has been the subject of rich academic attention over the past few decades as scholars have sought to understand how different organisational structures influence professionalism. This focus has been spurred by an increasing concern that professionalism is in decline. The outcome has resulted in considerable empirical research evaluating the normative value systems in different organisational structures within which the professions, including lawyers, work. Missing from this analysis, however, is an understanding of how professionalism morphs in law firms that are structured as companies, such as incorporated legal practices (ILPs). The absence of scholarship on ILPs and professionalism is curious for several reasons. First, ILPs are the antithesis of partnerships. In an ILP, unlike a partnership, non-lawyers can hold unlimited equity and share fees with lawyers. Second, it has been more than 20 years since ILPs have been permitted in New South Wales (NSW), Australia and thousands of ILPs exist today. Third, several jurisdictions, including every State and Territory across Australia, England and Wales, Utah and Arizona, have amended their legislation to permit non-lawyers to hold unlimited equity in law firms. Fourth, notwithstanding, non-lawyer equity in law firms continues to be opposed by numerous regulators of the legal profession across Europe and North America. Such opposition is grounded in a fear that non-lawyers will erode professionalism. This thesis responds to this fear by building a foundation for subsequent studies to understand how professionalism morphs in law firms with non-lawyer equity by focusing on ILPs in NSW. It addresses three questions: (i) How did the law firm partnership model in NSW shape professionalism before incorporation was permitted? (ii) What are the motivators for incorporating a law firm? and (iii) How does the incorporation of a law firm then influence professionalism? The first question was answered by tracing the development of law firm organisational structures in NSW and their corresponding paradigms of professionalism. The second and third questions were answered by senior leaders of law firms in NSW who participated in in-depth interviews. The findings reveal that incorporation in the ILPs studied in this thesis has not led to an ostensible erosion of the traditional professionalism paradigm. Rather, incorporation has led to a blend of hybrid norms. Two key factors have led to professionalism being morphed in this manner. The first is a concerted effort by the ILPs studied in this thesis to control the involvement of non-lawyers in their ILP, and the second is a dual regulatory framework that treats an ILP as a corporate entity but at the same time ensures that the professional and ethical obligations of lawyers in NSW are upheld.

  • (2022) Frishling, Nana
    Thesis
    This thesis is about multi-stakeholder initiatives that seek to regulate the human rights impacts of global apparel supply chains (Apparel MSIs). MSIs have the aim of improving human rights for millions of apparel workers worldwide, but after two decades they show little evidence of such improvement. Civil society critics argue that MSIs are ineffective, unreformable private regulation that is not fit-for-purpose and lacks legitimacy. This thesis argues that Apparel MSIs still perform a valuable regulatory function, however they must adopt new regulatory approaches. These include moving beyond social audit as a regulatory technique, expanding stakeholder participation and better measuring and communicating impact. MSIs must transform to realise their aim of improving apparel workers human rights and consequently preserve their legitimacy. To understand and contribute to this transformation the thesis method incorporates existing literature; it applies theoretical frameworks; and the insights of original empirical research. From the latter the voices of worker advocates, union leaders and academics reveal recent and promising regulatory innovations and changes in MSIs. Along with this empirical research, the original contributions of this thesis are to emphasise the interconnected nature of legitimacy criteria and assess the overall legitimacy of Apparel MSIs in the light of the functional model adopted by each MSI. This legitimacy analysis is supported by the regulatory theory of responsive regulation, which explicitly contemplates self-regulatory forms like MSIs. The original contribution of bringing responsive regulation to bear on Apparel MSIs, provides new insights into how they can bolster their regulatory effectiveness and legitimacy. Interviews undertaken with key stakeholders provide a sociological perspective to this analysis. Interview data also drive the final recommendations for reform which coming from MSI stakeholders point to recent innovations in private regulation as a more promising alternative. Given the opportunity to build a more just world after the Covid-19 pandemic, these recommendations could not come at a more critical juncture.

  • (2023) Smithers, Kathryn
    Thesis
    This thesis examines how the problematisation of sexual offending and contemporary constructions of ‘sex offenders’ have impacted on the emergence of technologies to govern known perpetrators living in the NSW community. Mechanisms include a sex offender register; extended supervision and continuing detention orders; restrictions on residency, movement and association; and intrusive surveillance. By means of a genealogical analysis, and a multi-method research design, it examines the incidents, actors, claims and rationalities that have influenced the emergence of an extensive and exceptional post-sentence governance regime aimed at community protection. It draws on the perceptions of 21 stakeholders (including psychiatrists, psychologists, lawyers, and volunteers who work with sex offenders) about the introduction, operation and impacts of the contemporary NSW post-sentence governance framework. It analyses participants’ views about monitoring and supervision of offenders, as well as the provision of treatment, support, and assistance to them. This thesis demonstrates that in NSW exclusionary, incapacitating crime control measures have been pursued with the aim of preventing sexual (re)offending, and that more inclusive, capacity-building mechanisms have been marginalised. This has occurred despite a lack of evidence that measures which rely on strictly enforced external controls reduce recidivism and mounting evidence that such approaches act as barriers to reintegration and desistance. This thesis finds the emergence of contemporary approaches has been influenced by a lack of understanding of the empirical realities of sexual offending; extremely negative (mis)perceptions about perpetrators; and the particular way that risk has been conceptualised in relation to sexual (re)offending. While tools to assess and manage the risks posed by sex offenders are imbued with an actuarial, impersonal and seemingly objective logic; risk assessment and management has also been underpinned by highly emotional and moralising discourse and perennial panic. These factors have rendered sex offenders exceptionally high-risk, both deserving and in need of exceptional governance measures. This thesis suggests that shifts in the NSW governance framework to reduce sexual (re)offending and enhance community safety are possible. However, this will require enhanced understanding and education about the realities of sexual offending and the factors that support desistance, and a reconfiguration of the extant risk-paradigm.

  • (2023) Guidi, Caterina
    Thesis
    Climate change poses serious challenges for forests and thus for sustainable forest management (SFM). The concept of resilience has been identified as a useful tool in minimising the impacts of climate change on forests. However, while the utility of the concept has been recognised generally in the literature, and seven principles of ‘Resilience Thinking’ have been designed, application of the concept in the context of SFM has yet to be examined. Under international commitments, Australia is obliged both to account for climate change impacts in SFM and to work to increase forest resilience in order to minimise those impacts and ensure the sustainability of forests into the future. Using the ‘Resilience Thinking’ principles as a framework, this thesis examines SFM legislation and policies in Tasmania and New South Wales (NSW) to ascertain the extent to which they support forest resilience to climate change. In particular, it assesses whether and how each principle is considered in the development and implementation of SFM systems. Four major challenges to the development and implementation of SFM legislation and policies capable of supporting forest resilience are identified: fragmentation of SFM systems; inadequate participation in forest decision-making; the absence of active adaptive management in forest reserves; and SFM legislation and policy mechanisms that fall short in dealing with both the short and long-term uncertainties of climate change impacts on forests. Reflecting on those challenges, the thesis proposes and examines possible solutions including: the application of an integrated landscape approach to SFM; options for improved participation by a more diverse range of actors in periodic goal setting and management actions; the application of active adaptive management aimed specifically at building resilience in reserve areas; and the incorporation of short and long-term goals into decision-making through adequate monitoring, reporting and evaluation systems utilising specific resilience criteria and indicators. In applying the ‘Resilience Thinking’ principles in the SFM context for the first time, the thesis lays the groundwork for further consideration of the challenges and solutions to implementing resilience beyond the case studies.

  • (2023) Williams, Leah
    Thesis
    This study investigates the construction of newspaper court reports as an act of ‘meaning making’. Through a qualitative analysis, it seeks to develop a better understanding of how the criminal trial and defendants are represented and how meanings are embedded and advanced through newspaper court reports. Distinct from the question of what is reported about criminal proceedings, my aim is to generate insights into how the myriad contestations that occur within and surrounding criminal trials are negotiated in the construction of a newspaper court report and to theorise the possible implications of the meanings produced through those processes of construction. I conceptualise newspaper court reports as narratives and use a combination of functionalist narratology and cultural criminology to expose the barely visible and highly sophisticated ways in which narrative techniques respond to the plurality of stories that comprise a criminal trial. Focusing on seven case studies representing the defendants in five criminal trials heard in New South Wales between 1893 and 2016, I demonstrate how narrative techniques perpetuate the use of gendered expectations and idealised identities to amplify the deviance of defendants in increasingly complex ways. My analysis does not seek to draw determinative conclusions about what is communicated through newspaper court reports, but rather to understand how processes of narrative construction and meaning making operate together to create, recreate, strengthen or weaken some meanings and not others. This study makes an original contribution to knowledge that expands upon the existing literature regarding mediated representations of defendants and situates the analysis of their construction against the competing imperatives of fair trial rights and news values. The findings generate insights into the relationship between how newspaper court reporting narratives are constructed, and how meanings about cultural products such as crime and justice are negotiated and reinforced.

  • (2022) O'Connor, Jayne
    Thesis
    Indigenous women in Australia have remained one of the most at-risk demographics for sexual violence victimisation since colonisation began. Indigenous women have historically been marginalized and excluded from accessing justice for sexual violence through the legal system. Changes to the justice system, including incorporating some Indigenous-focussed practices in sentencing, have resulted in inadequate access to justice for Indigenous women sexual assault victims. Some women who have not been able to find justice or validation in the legal system have sought other avenues for redress, including social media activism. The MeToo movement is one of the largest social media activist movements to date to address the issue of sexual violence. The MeToo movement has been seen as a means by which victims can take control of the narrative around sexual violence and seek recognition and justice outside the courtroom. Millions of women globally have participated in MeToo, but the movement has also been subject to critiques about its lack of inclusivity and its inability to respond to intersecting forms of oppression and trauma. Through MeToo, women have revealed the legal system has fundamentally failed victims of sexual violence, especially Indigenous women. The thesis asks: What does the MeToo movement in Australia reveal about the differences and similarities in narrative and process between the criminal justice system (CJS) and social media regarding sexual violence allegations and the potential for social media to act as an alternative to the CJS? This thesis responds to this question with a focus on a disenfranchised sector of Australian society, namely Indigenous women. By synthesising theories from the frameworks of decolonisation and critical race feminism, the thesis applies critically analyses the phenomena of spectacle and performativity. The thesis reveals several ways by which social media activism replicates the patterns of exclusion and discrimination present in the legal system, leaving Indigenous women substantially excluded from two major avenues for redress of inaccessibility to justice and related grievances. The thesis identifies the replication of patterns of exclusion and discrimination across three contexts: society, the legal system, and social media activism. The thesis concludes alternative justice seeking methods will struggle to succeed while the foundations of colonisation and patriarchy persist. It also reveals three overarching themes, and four conceptual tensions present at the intersection of sexual violence against Indigenous women and social media activism. The themes are: (1) voice, narrative, and visibility; (2) agency and self-determination, and (3) transnational/transcultural phenomena. The tensions are: (1) law and justice; (2) the criminal justice system and MeToo; (3) platforms and targets; and (4) commodification and resistance.

  • (2023) Arcot Ananth, Siddharth Narrain
    Thesis
    A key feature of the material infrastructure of hate speech online on Facebook is virality – the rapid transmission of content over large distances through key nodes and actors on the platform. Virality is enabled by the bringing together of collectivities (crowds and publics) and connectivity provided by Facebook, which is accessed widely through Internet-enabled mobile phones. In contemporary India, increased connectivity provided by the material infrastructure of Facebook has reconfigured the relationship between crowds, publics and media, facilitated virality, and led to deadly illocutionary and perlocutionary effects such as inter-group violence and the subordination of minority groups. This thesis investigates how Facebook, through its content moderation policies and related institutional mechanisms and infrastructures, regulates the virality of hate speech online on the platform. Drawing on contemporary developments in India and the historical development of Indian hate speech doctrine, this thesis identifies emerging tensions between the global scale of hate speech regulation on Facebook and local context. These emerging tensions are visible in Facebook’s framing of its community standards on hate speech, and in the relationship between Facebook and national and subnational actors in India. These tensions are also visible in differences and contradictions in how actors who are part of Facebook’s governance model, including the Oversight Board, have approached the question of the regulation of hate speech online. This thesis employs mixed methods including a law-in-context reading of doctrine, documentary analysis and semi-structured interviews conducted with members of the Facebook Oversight Board, employees of Facebook and lawyers, academics and policy experts in the field. This thesis is part of a growing body of scholarship that examines the regulation of hate speech online and virality on Facebook through a non-United States and non-European lens.

  • (2023) Smith, Angela
    Thesis
    For decades, the Mediterranean Sea has been the site of intense political struggles over the governance of human mobility. In recent years, aerial infrastructure has played an increasingly important role in attempts to secure the border and apprehend unauthorised movement. Taking this tactical shift in bordering practices as a prompt for a deeper investigation of the aerial, this interdisciplinary thesis critically examines the role of civil aviation in the governance and contestation of the Mediterranean borderzone between North Africa and Europe. Through undertaking a genealogy of aerial practices across multiple sites, this thesis explores the boundary-making power of civil aviation. This analysis is both historical and contemporary. I draw upon archival material from the International Civil Aviation Organisation (ICAO) to trace the evolution of global aviation security in the context of postcolonial struggles. Examining contemporary practices, I turn to data from interviews with pilots and activists currently engaged in contesting border politics through civil aerial surveillance operations. I also analyse European state behaviour using documents obtained through Freedom of Information (FoI) requests. By looking across these multiple historical and contemporary sites of governance and contestation, this thesis shows how the ‘air power’ of civil aviation is constituted in practice. To describe the role of the plane, and the forms of power that cohere around it, this thesis introduces the concept of ‘jurisdictional infrastructure’ to demonstrate how political authority is produced through civil aviation infrastructure. Drawing on historical and contemporary examples, this thesis shows that civil aviation is not simply a vessel through which political or legal decisions are enacted or translated, but rather, that mobility infrastructure itself exerts, confers, and authorises power. Furthermore, the thesis argues that civil aviation shapes the governance and contestation of the border through its embeddedness in the element of the air. The elements of air and water are critically enfolded in the political stakes of the border through their role in surveillance, shipwrecks, and rescue. A rendering of civil aviation’s air power as elemental helps to connect the methods of political control exercised at the border (including through infrastructural forms) with the distribution of life and death at the border. This thesis enriches understandings of circulation and control across the Mediterranean through a consideration of the aerial. In doing so, it accords civil aviation infrastructure, its materiality, and the elemental geographies it traverses a vital position in understanding the contemporary Mediterranean borderzone.

  • (2023) Gumbert-Jourjon, Thea
    Thesis
    Defendants are convicted of sexual offences at lower rates than for other types of violent crime. Prior research has implicated attitudinal contributors to this “justice gap” amongst the jury-eligible population, including rape myth acceptance (RMA), and misconceptions about the availability and conclusiveness of medical and forensic evidence to support a complainant’s allegations. The present research hypothesised that further contributors were common legal misunderstandings of the standard “beyond reasonable doubt” (BRD), and jurors’ beliefs that certain types of evidence are required in order to convict. A series of five online studies with 1,434 mock-jurors from English-speaking, common-law jurisdictions examined the contributions of RMA and legal and evidentiary misconceptions to juror decision-making. In Study 1 an original survey measure, the Legal Misconceptions Questionnaire (LMQ), was validated and pilot tested with a sample of 324 MTurk workers. Several common legal areas of legal misconception in the lay population were identified, including overly-lax and overly-stringent BRD thresholds. Study 2 provided a manipulation check of the trial stimulus materials and potential order effects using a 3x3 between-participants factorial design with 325 MTurk workers. Study 3 used 3x2 and 2x2 between-participants factorial designs to investigate the effects of type of complainant injury (none, physical injury, or sexual injury), and legal and evidentiary misconceptions upon the verdicts of 407 mock-jurors sourced from Prolific, and their perceptions of the complainant and evidence in different types of criminal trials (adult sexual assault, child sexual assault, and robbery). In Study 3, the presence, but not type, of injury increased mock-jurors’ ratings of complainant credibility. Mock-jurors who endorsed more legal misconceptions and held greater expectations of forensic evidence, rated the trial evidence as weaker and were more likely to acquit the defendant. Study 4 used a within-participants design to examine the impact of attitudinal variables including RMA, ambivalent sexism, and pre-trial bias upon the decisions of 136 Prolific workers in a sexual assault trial. Lower thresholds for BRD were positively associated with convictions for sexual assault. Hostile sexism predicted lower perceived credibility ratings of the complainant and benevolent sexism predicted greater perceived credibility. RMA was not significantly associated with any measured outcomes, perhaps due to sample characteristics and methodological features of the study. Study 5 used a between-participants design which compared the effects of three different formulations of the BRD standard upon mock-jurors’ verdicts (n = 242 Prolific workers) in a simulated sexual assault trial. Variations in BRD formulation exerted no significant effects upon mock-jurors’ verdicts, their thresholds for conviction, or the accuracy of their understanding of the BRD standard. Open-ended responses stating the reasons for the verdict from three studies were subjected to a thematic analysis revealing that both acquitting and convicting jurors utilised a combination of heuristic and systematic processing in which they variously endorsed and rejected rape myths, evidentiary and legal misconceptions. Robust support was found for mock-jurors’ use of coherence-based reasoning when considering verdict options. Overall, findings indicated that misconceptions about evidence and the law, particularly dissatisfaction with a complainant’s oral testimony, and the erroneous belief that BRD mandates total certainty, are contributors to the low conviction rates in sexual assault cases. Unexpectedly, a concurrent risk of unsafe convictions emerged with reversals of the onus of proof by up to one-third of mock-jurors. Jurors may require educative intervention (such as additional judicial instructions, expert evidence, or explanations by counsel) to counter prevalent misunderstandings not only about the nature of sexual assault, but evidentiary and legal issues which are relevant in all criminal trials.