Punishment in a ‘tolerant society’: interrogating hate crime law reform discourse

ABSTRACT

This article examines political and media discourse surrounding a specific Australian example of hate crime law reform that was instituted principally to combat a wave of racial violence. The analysis suggests that the introduction of hate crime law can advance a liberal tolerance discourse that becomes interwoven with a ‘law and order’ agenda. This creates a troubling context whereby punitiveness may be promoted as a vehicle to deliver social justice goals and peaceful multiculturalism. By highlighting the contingency of the law's messages at the nexus of tolerance-intolerance, the article advances a critical analysis of punishment's educative project. Hate crime law is a particularly contested site that forces us to reconsider the multidimensional relationship between the expansion of criminalisation, state tolerance discourse and social marginalisation.

Acknowledgements

I am grateful to the anonymous reviewers at Griffith Law Review for the encouraging and helpful suggestions that have improved this article, and to Deakin University, where I completed this research and writing. Also, thanks to Bree Carlton, Cara Gledhill, Jude McCulloch and Liz Patterson for reading and commenting on a much earlier version of this writing.

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Emma K. Russell is a Lecturer in Crime, Justice and Legal Studies in the Department of Social Inquiry at La Trobe University, Melbourne.

ORCID

Emma K. Russell http://orcid.org/0000-0002-2643-526X

Notes

1 Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2009, p 3358.

2 When used in reference to the specific case study of Victoria, ‘hate crime law’ in this article refers to what is generally termed the ‘sentence aggravation model’, rather than the penalty enhancement or substantive offence models. See Mason (2009a).

3 McMahon (2009); Best and Bradford (2009).

4 Taylor (2009); Austin et al (2009).

5 Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2009, p 3358.

6 Mason (2014a), p 296.

7 On the politics of victimhood in hate crime laws, see Jenness and Grattet (2001); Mason (2014b); Chakraborti and Garland (2012). On hate crime laws extending collective criminalisation, see Dixon and Gadd (2006); Smith (2007).

8 Brown (2006).

9 Edensor (2002). For another example of the application of Wendy Brown's critique of tolerance discourse in a sub-national sphere, see Richardson and Monro (2013).

10 Russell and Carlton (2013); Tubex et al (2015).

11 I follow Fairclough’s (1995) conception of discourse and proceed from the assumption that texts and discourses are both socially shaped and socially constitutive.

12 Sentencing Advisory Council (2009).

13 The media sample was drawn from the Newsbank media database. It was collected using different combinations of the search terms ‘Victoria’, ‘hate crime’ and ‘law’. The date range was restricted to 2009 and the resultant sample ranges from 20 February 2009 to 10 December 2009. Relevant media collected, coded and analysed include: 15 news articles; 11 letters to the editor; 3 opinion pieces; and 1 editorial (a total of 30 distinct texts). Initially the search was restricted to Victorian newspapers. Subsequently, it was expanded to include The Australian to gain a national reporting perspective. The majority of articles (six) and letters (eight) and the editorial are from The Age, whereas the majority of opinion pieces are from the Geelong Advertiser. In order to keep the analysis focused specifically on law reform, I did not include in the sample articles that addressed racial violence against Indian students if they were absent of reference to hate crime law; this has been covered elsewhere in Dunn et al (2011) and Mason (2012).

14 Submissions examined are those authored by: Council to Homeless Persons and PILCH Homeless Persons Legal Clinic; Flemington & Kensington Community Legal Centre; Jewish Community Council of Victoria and the B’nai B’rith Anti-Defamation Commission; Liberty Victoria; Victorian Aboriginal Legal Service; Victorian Network of Women with Disabilities; and Victorian Equal Opportunity and Human Rights Commission.

15 See Altheide (2002) and Millbank (2012) for similar methodologies.

16 For a similar methological rationale, see Millbank (2012).

17 Penalty is ‘the broad field of institutions, practices, discourses and social relations which surround the ideas and practices of punishment’. Baldry et al (2011), p 26.

18 See Freiberg (2001); Mason (2014b); Garland (1990); De Haan and Loader (2002); Walker (1991).

19 Feinberg (1970) pp 98, 100.

20 Deford (2005), p 844.

21 Deford (2005); Moran (2004).

22 Wringe (2016), p 85.

23 O'Malley (1999).

24 Hawkins (1972); Wringe (2016).

25 Mason (2014b).

26 Kauppinen (2015); Sentencing Advisory Council (2009).

27 Walker (1991).

28 Garland (1990); Mason (2014b).

29 Mason (2014b), p 78; Jacobs and Potter (1998); Jenness and Grattet (2001).

30 Jacobs and Potter (1998), p 65.

31 Asquith (2014); Jacobs and Potter (1998); Aharonson (2010).

32 On neoliberalism and punitiveness, see Cunneen et al (2013); Garland (2001); Wacquant (2009). On ‘injury-based’ claims to law, see Brown (1995). On turning the law against itself, see Moran and Skeggs (2004).

33 Lamble (2013); Karstedt (2002).

34 Kauppinen (2015).

35 Harris, 2011.

36 Mason (2007, 2014b), p 76.

37 But see Russell (2015) for an example of a successful construction of legitimate victimhood by an historically marginalised group.

38 Jenness (2002); Mason (2014a).

39 Graycar and Morgan (2004); Nielson (2014); Smith (2007).

40 Mason and Dyer (2013); Mason (2014b); see also Dixon and Gadd (2014)

41 Mason (2014a), p 303.

42 Brown (2006), p 7.

43 Brown (2006), p 45; Hage (2001).

44 Brown (2006), p 84.

45 Hage (2001), p 77.

46 Brown (2006), p 183.

47 Brown (2006), p 184.

48 Feinberg (1970), p 100.

49 Deford (2005), p 844.

50 Dixon and Gadd (2006).

51 Deford (2005).

52 An additional site of unpredictability in the communicative aspect of law is in its uneven and discretionary application by police and courts, which was highlighted by some public submissions to the Eames Review (e.g. Victorian Aboriginal Legal Service (2010) and Flemington & Kensington Community Legal Centre (2010)). See Deford (2005).

53 Moran (2004), p 925; see also Russell (2017).

54 Dixon and Gadd (2006).

55 Sentencing Advisory Council (2009), p 18.

56 Sentencing Advisory Council (2009), p 21.

57 Sentencing Advisory Council (2009), p 12.

58 Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2009, p 3358.

59 Mason (2010).

60 For example, Criminal Code 1913 (WA) s 313 and Crime and Disorder Act 1988 (UK) ss 28–32.

61 Asquith (2014).

62 Topsfield (2009); see also Jewish Community Council of Victoria and the B’nai B’rith Anti-Defamation Commission (2010).

63 LGBTIQ refers to lesbian, gay, bisexual, transgender, intersex and queer communities.

64 Russell (2017).

65 Attorney-General (2009); Joudo Larsen et al (2011); Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2009, p 3358; Macreadie (2009); Sentencing Advisory Council (2009).

66 The Age (2009).

67 Mason (2009b); Dunn et al (2011); Yue (2012).

68 Berg (2016).

69 Dunn et al (2011); Mason (2012); Yue (2012). See Garland (1996) for a discussion of responsibilisation as a strategy of contemporary crime control.

70 Topsfield (2009).

71 Macreadie (2009); Victoria Police (2009).

72 Dunn et al (2011).

73 Mason (2012), p 6.

74 Callick (2009).

75 Eames (2009). The Eames Review was initiated ‘to ensure Victorians are protected against the abhorrent nature of hate crime and assist the justice system in sentencing the perpetrators of such crimes appropriately’.

76 The author submitted a request for the Eames Review documents under Freedom of Information legislation, but was denied on the basis that: ‘a position on the recommendations in the report was not reached by the government of the day in 2010, [hence] disclosure would be contrary to the public interest by reason that it would lead to unnecessary debate on issues that have not been deliberated on or decided by government, either current or former. Source: Personal Correspondence with the author from J. Frampton, Victorian Department of Justice and Regulation, 31/08/2016.

77 Tubex et al (2015).

78 See Garland (1990) on popular punitivism.

79 Austin et al (2009).

80 Vorchheimer (2009a); Sethi (2009); Vorchheimer (2009b).

81 Austin et al (2009).

82 Austin et al (2009). This front-page story generated a number of articles in other papers, multiple letters to the Editor, opinion pieces and an Editorial, most appearing the following day on 3 June 2009.

83 Garland (1996), p 460.

84 Hall (1988).

85 Mason (2009b), p 285.

86 Best and Bradford (2009); Millar and Gregory (2009).

87 Victoria, Parliamentary Debates, Legislative Assembly, 17 September 2009, p 3358.

88 For the conflation of the ‘community’ with values of tolerance, see Eames (2009); Victorian Equal Opportunity & Human Rights Commission (2010). For other related descriptors, see Billimoria (2009); Vorcheimer (2009); Millar and Gregory (2009).

89 Gamble (2009); Wade (2009a); Billimoria (2009); Best and Bradford (2009); ‘Premier a hit in Delhi’, Herald Sun, 25 September 2009, p 27.

90 Gamble (2009); Wade (2009b).

91 Hage (2001), p 77; see also Brown (1995); Rosga (1999).

92 McMahon (2009).

93 Best and Bradford (2009).

94 Topsfield (2009).

95 Rabich (2009); Peters (2009).

96 The Age (2009).

97 Bolt (2009); Moore (2009); French (2009).

98 Moore (2009).

99 Moore (2009).

100 Hulls (2009).

101 O'Connell (2008).

102 Awadalla (2009); Wade (2009a); Drill (2009); ‘Premier a hit in Delhi’, Herald Sun, 25 September 2009, p 27.

103 Wade (2009b).

104 Sentencing Advisory Council (2009), p 18.

105 Victorian Equal Opportunity & Human Rights Commission (2010), p 3.

106 Victorian Equal Opportunity & Human Rights Commission (2010), pp 23, 38.

107 Liberty Victoria (2010), p 3.

108 Liberty Victoria (2010), p 15.

109 Victorian Network of Women with Disabilities (2010).

110 See Victorian Aboriginal Legal Service (2010); Flemington-Kensington Community Legal Centre (2010); Council to Homeless Persons and PILCH Homeless Persons Legal Clinic (2010).

111 Victorian Aboriginal Legal Service (2010), p 5.

112 Cunneen (2011); Hogg (2001); Anthony (2013).

113 Council to Homeless Persons and PILCH Homeless Persons Legal Clinic (2010), p 7.

114 Mason (2014b).

115 Mason (2014b), p 78.

116 Haritaworn (2015).

117 This could build upon Mason (2010; 2014a) and Mason and Dyer’s (2013) existing research on sentencing hate crime in Victoria and other Australian states.