One-Punch Drunk: White Masculinities as a Property Right in New South Wales’ Assault Causing Death Law Reforms

Abstract

In the mid-2010s, New South Wales (NSW) introduced statutory reforms responding to prominent fatal one-punch assaults in public and publican spaces – introducing mandatory sentences for a new class of offenses, and summary offenses – that to date appear to have targeted predominately young minority men. This paper argues that the reforms, inspired in NSW and other Australian states by one-punch assaults by intoxicated minority men against affluent young white men, are expressions of an proprietary right to larrikinism (a colonial-era cultural tradition of drunken, irreverent masculinity) in criminal law, rather than gestures to prevent or punish public violence at large. It further posits that the reforms are an expression of Australian criminal laws’ tendency to protect young white men and their interests, through benevolently safeguarding their exclusive right to mutual social violence and public recreational space and punishing others who use that violence and that space. It concludes that the reforms create white patriarchal rights to public space and the exclusive use of violence within it.

Notes

1 To know more about the early colonisation of Australia, including the Frontier Wars, see Elizabeth Elbourne, ‘The Sin of the Settler: The 1835–36 Select Committee on Aborigines and Debates over Virtue and Conquest in the Early Nineteenth-Century British White Settler Empire’ (2003) 4(3) Journal of Colonialism and Colonial History; Ann McGrath and Winona Stevenson, ‘Gender, Race, and Policy: Aboriginal Women and the State in Canada and Australia’ [1996] (71) Labour History 37; Larissa Behrendt, Finding Eliza: Power and Colonial Storytelling (University of Queensland Press 2016).

2 See Danielle Every, ‘A Reasonable, Practical and Moderate Humanitarianism: The Co-Option of Humanitarianism in the Australian Asylum Seeker Debates’ (2008) 21(2) Journal of Refugee Studies 210; Fiona H Mckay, Samantha L Thomas and Susan Kneebone, ‘“It Would Be Okay If They Came through the Proper Channels”: Community Perceptions and Attitudes toward Asylum Seekers in Australia’ (2012) 25(1) Journal of Refugee Studies 113.

3 Theorised by Quandamooka scholar Aileen Moreton-Robinson. Aileen Moreton-Robinson, ‘The Possessive Logic of Patriarchal White Sovereignty: The High Court and the Yorta Yorta Decision’ (2004) 3(2) Borderlands Journal 1, 5.

4 Diane Kirkby, ‘“Beer, Glorious Beer”: Gender Politics and Australian Popular Culture’ (2003) 37(2) The Journal of Popular Culture 244.

5 Matthew Johns, Am I Ever Gonna See the Biff Again? (Bring Back the Biff) (The Footy Show 2004) <https://www.youtube.com/watch?v=XuMukG3sMH4> (last accessed 3 July 2020).

6 Asher Flynn, Mark Halsey and Murray Lee, ‘Emblematic Violence and Aetiological Cul-De-Sacs: On the Discourse of “One-Punch” (Non) Fatalities’ (2016) 56(1) The British Journal of Criminology 179.

7 Jennifer Lucinda Pilgrim, Dimitri Gerostamoulos and Olaf Heino Drummer, ‘“King Hit” Fatalities in Australia, 2000–2012: The Role of Alcohol and Other Drugs’ (2014) 135 Drug and Alcohol Dependence 119. Australia holds the ‘dubious honour of being the epicentre’ of one-punch violence per capita. As above at 179.

8 Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 No 2 (NSW).

9 Liam Burke, ‘One Punch Can Start Moral Panic: An Analysis of News Items about Fatal Assaults in Queensland between 23 September 2006 and 28 February 2009’ (2010) 10(1) QUT Law Review 87.

10 Catherine Ferguson and Rachel Robson, ‘A Legal and Social Analysis of “One Punch” Cases in Western Australia’ (2015) 18 University of Western Sydney Law Review 19, 20.

11 Burke above note 9 at 92–4.

12 Australian Institute of Criminology, Trends in Homicide, 1980–90 to 2013–14 (2015) Crime Statistics Australia <http://crimestats.aic.gov.au/NHMP/1_trends/index.html> (last accessed 1 October 2019).

13 R v Loveridge [2013] NSWSC 1638 at [37].

14 Sally Block, ‘Thomas Kelly's Parents “horrified” at Killer's Sentence’ ABC News (online) 8 November 2013 <http://www.abc.net.au/news/2013-11-08/kieran-loveridge-sentenced-to-six-years27-prison-over-king-hit/5078728> (last accessed 3 July 2020).

15 As above.

16 Kim Stephens, ‘Cole Miller Death: How Many One-Punch Deaths Does It Take?’ Brisbane Times (online) 10 January 2016 <https://www.brisbanetimes.com.au/national/queensland/cole-miller-death-how-many-onepunch-deaths-does-it-take-20160109-gm2lao.html> (last accessed 3 July 2020); Ron Goodman, ‘Queensland's Sorry History of One Punch and Bashing Deaths and Injuries’ Brisbane Times (online) 5 January 2016 <https://www.brisbanetimes.com.au/national/queensland/queenslands-sorry-history-of-one-punch-and-bashing-deaths-and-injuries-20160105-glz9pt.html> (last accessed 3 July 2020).

17 The use of anabolic-androgenic steroids in high schools in south-eastern Australia was associated with speaking a non-English language at home or being born overseas (proxies used in Australia to measure race) and Aboriginality. D J Handelsman and L Gupta, ‘Prevalence and Risk Factors for Anabolic-androgenic Steroid Abuse in Australian High School Students’ (2003) 20(3) International Journal of Andrology 159.

18 Press Release from Premier Barry O’Farrell, ‘Lockouts and Mandatory Minimums to Be Introduced to Tackle Violence’ (online) 21 January 2014 <https://www.nsw.gov.au/news/lockouts-and-mandatory-minimums-to-be-introduced-to-tackle-violence/> (last accessed 3 July 2020).

19 Julia Quilter, ‘One-Punch Laws, Mandatory Minimums and “Alcohol-Fuelled” as an Aggravating Factor: Implications for NSW Criminal Law’ (2014) 3(1) International Journal for Crime, Justice and Social Democracy 81, 82. Interstate law reform commissions expressly recommended against the introduction of similar measures. Western Australia Law Reform Commission, ‘Review of the Law of Homicide’ (Law Reform Commission Project 97, Western Australia Law Reform Commission 2007) <http://www.lrc.justice.wa.gov.au/p/project_97.aspx> (last accessed 3 July 2020). Queensland Law Reform Commission, ‘A Review of the Excuse of Accident and the Defence of Provocation’ (Law Reform Commission Report 64, Queensland Law Reform Commission 2008) <https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0005/372470/R-64.pdf> (last accessed 3 July 2020).

20 Richard Beasley and Victoria Bridgen, ‘An Interview with Attorney-General Gabrielle Upton’ (2015) 51 Journal of the NSW Bar Association 48, 50–1.

21 Julia Quilter, ‘The Thomas Kelly Case: Why a “One-Punch Law” Is Not the Answer’ The Conversation (online) 12 November 2013 <https://theconversation.com/the-thomas-kelly-case-why-a-one-punch-law-is-not-the-answer-20106> (last accessed 3 July 2020).

22 R v Loveridge [2013] NSWSC 1638 at [19].

23 R v Loveridge [2014] NSWCCA 120 at [30].

24 As above at [168].

25 Paul Bibby, ‘Four Years for a Life: Kelly Family's Outrage’ Sydney Morning Herald (online) 8 November 2013 <https://www.smh.com.au/national/nsw/four-years-for-a-life-kelly-familys-outrage-20131108-2×7ca.html> (last accessed 7 July 2020).

26 ‘I could not help noticing that when the statements were read in court many of the large number present were moved to tears by the accounts given. I also noticed that this included persons I took to be in court to support the offender, including his mother. The offender himself wept’. R v Loveridge [2013] NSWSC 1638 at [6].

27 Phil Rothfield, ‘Coward Killer Kieran Loveridge Won't Assist NRL Integrity Unit Investigators’ PerthNow (online) 1 December 2016 <https://www.perthnow.com.au/sport/rugby-league/coward-killer-kieran-loveridge-wont-assist-nrl-integrity-unit-investigators-ng-4e778f3b4dcc5534fddb070700891424> (last accessed 3 June 2020).

28 Andrew Webster, ‘Cronulla Sharks’ Andrew Fifita on Kieran Loveridge: “I Do Not Excuse What He Has Done – but I Can't Turn My Back on a Mate”’ Sydney Morning Herald (online) 2 September 2016 <https://www.smh.com.au/sport/nrl/cronulla-sharks-andrew-fifita-on-kieran-loveridge-i-do-not-excuse-what-he-has-done--but-i-cant-turn-my-back-on-a-mate-20160902-gr7j27.html> (last accessed 3 July 2020).

29 David Marchese, ‘Thomas Kelly's Killer Kieran Loveridge Charged for Allegedly Punching Fellow Jail Inmate Before Brawl’ ABC News (online) 28 March 2018 <http://www.abc.net.au/news/2018-03-28/thomas-kellys-killer-charged-for-punching-fellow-jail-inmate/9597464> (last accessed 3 July 2020).

30 Staff Writer, ‘Cousin of One Punch Killer Kieran Loveridge Posts Cruel Message to Kelly Family’ news.com.au (online) 2 August 2016 <http://www.news.com.au/national/nsw-act/cousin-of-one-punch-killer-kieran-loveridge-posts-cruel-message-to-kelly-family/news-story/1ad6e9a7a34fb7a89fdac5f957268b32> (last accessed 3 July 2020).

31 R v Loveridge [2014] NSWCCA 120 at [269].

32 Flynn, Halsey and Lee above note 6 at 182.

33 As above at 185.

34 Crimes Act 1900 (NSW) s 25A.

35 Quilter above note 19 at 83.

36 Crimes Act 1900 (NSW) s 25A(3).

37 R v Lam (2008) 185 ACR 453.

38 For a comprehensive analysis of the legal concepts and overlap linking manslaughter and ACD, see Craig Burgess, ‘Critical Analysis of the Law Surrounding “One Punch” Killings’ [2016] Theses <http://epublications.bond.edu.au/theses/148> (last accessed 1 October 2019).

39 Wilson v R (1992) 174 CLR 313 at 333.

40 Crimes Act 1900 (NSW) s 428D(a).

41 Before the reforms, intoxication was only available at sentencing to mitigate when it contextualised otherwise ‘out of character behaviour’. R v GWM [2012] NSWCCA 240.

42 Crimes Act 1900 (NSW) s 25B(1).

43 Arie Freiberg, ‘Australia: Exercising Discretion in Sentencing Policy and Practice’ (2010) 22(4) Federal Sentencing Reporter 204.

44 Australian Institute of Criminology, Situational Factors, 2009–10 to 2013–14 (Report, Crime Statistics Australia 2015) <http://crimestats.aic.gov.au/NHMP/3_situational-factors/index.html> (last accessed 1 October 2019). Australian criminological data only measures Indigenous status, and not any other race metric other than ‘language spoken at home’, obscuring other racialised data.

45 Either through differential involvement (presenting to the court with different subjective circumstances than non-Indigenous offenders) – see Samantha Jeffries and Christine EW Bond, ‘The Impact of Indigenous Status on Adult Sentencing: A Review of the Statistical Research Literature from the United States, Canada, and Australia’ (2012) 10(3) Journal of Ethnicity in Criminal Justice 223 – or because ‘practical constraints emanating from broader community expectations are taking precedence at this point over the special needs of Indigenous offenders and societal expectations’. Samantha Jeffries and Christine EW Bond, ‘Does Indigeneity Matter? Sentencing Indigenous Offenders in South Australia's Higher Courts’ (2009) 42(1) Australian & New Zealand Journal of Criminology 47, 67.

46 NSW Bureau of Crime Statistics and Research, ‘Criminal Court Statistics’ n.d. <http://www.bocsar.nsw.gov.au/Pages/bocsar_court_stats/bocsar_court_stats.aspx> (last accessed 4 July 2020).

47 Quilter above note 19 at 90.

48 Julia Ann Quilter, ‘Judicial Responses to Alcohol-Fuelled Public Violence: The Loveridge Effect’ (2017) 6(3) International Journal for Crime, Justice and Social Democracy 123, 142.

49 In Victoria, the low level of convictions under one-punch laws have been attributed to its prosecutorial use as a bargaining tool. Adam Cooper, ‘One-Punch Laws a “Bargaining Chip” for Offenders, Victim's Mother Says’ The Age (online) 13 October 2017 <https://www.theage.com.au/national/victoria/onepunch-laws-a-bargaining-chip-for-offenders-victims-mother-says-20171010-gyxiyi.html> (last accessed 3 July 2020).

50 A comparative Australian jurisdiction that has implemented similar one-punch laws.

51 Kimberley Le Lievre, ‘NSW One-Punch Alcohol Fuelled Violence Legislation Isn't Working, Legal Experts Say’ Canberra Times (online) 17 December 2016 <http://www.canberratimes.com.au/act-news/nsw-onepunch-alcohol-fuelled-violence-legislation-isnt-working-legal-experts-say-20161209-gt80y3.html> (last accessed 3 July 2020).

52 Liquor Amendment Bill 2014 (NSW).

53 Including, most infamously, the quarantining of welfare income and the racial segregation of the service of alcohol. See generally Janet Hunt, ‘The Cashless Debit Card Trial: A Short Review’ (Topical Issues Report 1, Centre for Aboriginal Economic Policy Research 2017); Alison Vivian and Ben Schokman, ‘The Northern Territory Intervention and the Fabrication of Special Measures’ (2009) 13 Australian Indigenous Law Review 78; Alison Vivian, ‘Evidence? What Evidence? Government Policy Development and the Northern Territory Intervention’ (2012) 3 Ngiya: Talk the Law 13.

54 Jean Kennedy, ‘Keep Sydney Open: Thousands Attend Protest against Lockout Laws, Jimmy Barnes Backs Campaign’ ABC News (online) 9 October 2016 <http://www.abc.net.au/news/2016-10-09/lockout-laws-rally-sydney-130am/7916524> (last accessed 3 July 2020).

55 Safe Night Out Legislation Amendment Bill 2014 (Qld) explanatory notes at 32.

56 Simone Mitchell, ‘This Could Be the Cure for Your Festive Hangover’ news.com.au (online) 22 December 2016 <http://www.news.com.au/lifestyle/health/health-problems/this-could-be-the-cure-for-your-festive-hangover/news-story/66dbf7fa7c1bf35823b66ca4f839a429> (last accessed 3 July 2020).

57 Australian Bureau of Statistics, 2076.0 – Census of Population and Housing: Characteristics of Aboriginal and Torres Strait Islander Australians ABS Census (2011) <http://www.abs.gov.au/ausstats/[email protected]/Lookup/2076.0main+features602011> (last accessed 4 July 2020).

58 Australian Bureau of Statistics, 2016 Census Median Income: Bankstown ABS Census (2016) <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/SSC10180?opendocument> (last accessed 4 July 2020).

59 Australian Bureau of Statistics, 2016 Census Median Income: North Shore ABS Census (2016) <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/SED10060> (last accessed 4 July 2020).

60 Australian Bureau of Statistics, 2016 Census Median Income: Australia ABS Census (2016) <http://www.censusdata.abs.gov.au/census_services/getproduct/census/2016/quickstat/036> (last accessed 4 July 2020).

61 See Summary Offences Act 1988 (NSW) div 1; Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (No 2) s 5.

62 Tamara Walsh, ‘Policing Disadvantage’ (2008) 33 Alternative Law Journal 160.

63 As above.

64 Thalia Anthony and Harry Blagg, ‘STOP in the Name of Who's Law? Driving and the Regulation of Contested Space in Central Australia’ (2013) 22(1) Social & Legal Studies 43; Linley Walker, ‘Chivalrous Masculinity among Juvenile Offenders in Western Sydney: A New Perspective on Young Working Class Men and Crime’ (1997) 9 Current Issues in Criminal Justice 279.

65 Neil Donnelly, Suzanne Poynton and Don Weatherburn, ‘The Effect of Lockout and Last Drinks Laws on Non-Domestic Assaults in Sydney: An Update to September 2016’ (2017) 201 NSW Bureau of Crime Statistics and Research Bulletin 1, 9.

66 As above.

67 Ashleigh Raper, ‘Sydney's Lockout Laws: Assaults Down in Kings Cross, But Spreading Outside Inner-city Zones’ ABC News (online) 6 March 2017 <http://www.abc.net.au/news/2017-03-06/assaults-rise-in-areas-outside-sydneys-lockout-zones/8327032> (last accessed 3 July 2020); as above at 10.

68 Don Weatherburn, ‘What Does Research Tell Us about the Impact of Recent Liquor Licence Restrictions on Violence in New South Wales?’ (2016) 28(1) Current Issues in Criminal Justice 97.

69 See, for example, Corinne Sullivan, ‘Beyond The Wall: Identities, Communities and Belonging’ (Paper at the Australian Geographers Annual Conference, Adelaide, SA, 1 July 2016).

70 Neha Kale, ‘In the Rush to Gentrify Our Cities, Who Really Loses Out?’ SBS Culture (online) 8 November 2016 <https://www.sbs.com.au/topics/life/culture/article/2016/11/07/rush-gentrify-our-cities-who-really-loses-out> (last accessed 3 July 2020).

71 As above.

72 Lee Murray, ‘Sydney's Lockout Laws: For and Against’ (2016) 28(1) Current Issues in Criminal Justice 117; Chris Gibson and Peta Wolifson, ‘Beyond Lockouts: Sydney Needs to Become a More Inclusive City’ The Conversation (online) 16 March 2016 <http://theconversation.com/beyond-lockouts-sydney-needs-to-become-a-more-inclusive-city-55821> (last accessed 3 July 2020).

73 Sullivan Barbara, ‘When (Some) Prostitution Is Legal: The Impact of Law Reform on Sex Work in Australia’ (2010) 37(1) Journal of Law and Society 85.

74 Kane Race, ‘The Sexuality of the Night: Violence and Transformation’ (2016) 28(1) Current Issues in Criminal Justice 105.

75 Ginny Stein, ‘The Changing Face of Kings Cross with Its Gentrification, But Is It for the Better?’, Lateline (online) 31 August 2016 <http://www.abc.net.au/lateline/the-changing-face-of-kings-cross-with-its/7803484> (last accessed 3 July 2020).

76 Julia Quilter, ‘Responses to the Death of Thomas Kelly: Taking Populism Seriously’ (2013) 24(3) Current Issues in Criminal Justice 439; Quilter above note 19.

77 Julia Quilter, ‘Criminalisation of Alcohol-Fuelled Violence: One-Punch Laws’ in T Crofts and A Loughnan (eds) Criminalisation and Criminal Responsibility in Australia (Oxford University Press 2015) 82.

78 NSW Bar Association, ‘Mandatory One Punch Laws Not the Solution’ (press release) 21 January 2014 <https://www.nswbar.asn.au/circulars/2014/jan/MR_1punch.pdf> (last accessed 3 July 2020); Lievre above note 51.

79 Julia Quilter, ‘Sydney's Lockout Laws: Cutting Crime or Civil Liberties?’ (2016) 28(1) Current Issues in Criminal Justice 93; Elle Hunt, ‘Sydney Lockout Laws a “Sledgehammer” to Nightlife: Clover Moore’ The Guardian (online) 4 April 2016 <http://www.theguardian.com/australia-news/2016/apr/04/sydney-lockout-laws-a-sledgehammer-to-night-life-clover-moore> (last accessed 3 July 2020).

80 Associate Professor Julia Quilter at the University of Wollongong.

81 Murray above note 72; Donnelly, Poynton and Weatherburn above note 65.

82 Clover Moore, Sydney Lord Mayor, remarked ‘It was a sledgehammer when what we needed was a well-researched, evidence-based, flexible response using transport, planning, licensing and police’. Hunt above note 79.

83 Ian Lloyd Neubauer, ‘Sydney's Controversial Bar Curfews: Have They Worked?’ BBC News (online) 23 February 2017 <http://www.bbc.com/news/world-australia-38989001> (last accessed 3 July 2020); James Robertson, ‘Majority of Voters Back Broader Lockout Laws across NSW, Poll Shows’ Sydney Morning Herald (online) 29 August 2016 <https://www.smh.com.au/national/nsw/majority-back-broader-lockout-laws-across-the-state-20160828-gr31t9.html> (last accessed 3 July 2020).

84 Excluding the standard discourse about how increased penalty worsens criminal justice outcomes for Indigenous populations. See, for example, Elyse Methven, ‘A Very Expensive Lesson: Counting the Costs of Penalty Notice for Anti-Social Behaviour’ (2014) 26 Current Issues in Criminal Justice 249.

85 Kale above note 70.

86 Race above note 74.

87 See, for critical Indigenous analysis of white women's victimology and frontier warfare, Behrendt above note 1.

88 Katherine Bode, ‘Aussie Battler in Crisis? Shifting Constructions of White Australian Masculinity and National Identity’ (2006) 2(1) Critical Race and Whiteness Studies Journal 1, 7.

89 NSW Government and Danny Green, A Coward's Punch Can Kill (video) 2014 <https://www.youtube.com/watch?v=EH79j9BQjDE> (last accessed 3 July 2020).

90 Daniel Bolt, ‘Question of The Day: What Actually Is A “King Hit”?’ Vice (online) 3 February 2014 <https://www.vice.com/en_us/article/nnqngz/question-of-the-day-what-actually-is-a-king-hit-> (last accessed 3 July 2020).

91 George Morgan, ‘The Bulletin and the Larrikin: Moral Panic in Late Nineteenth Century Sydney’ (1997) 85(1) Media International Australia 17.

92 ‘Larrikin’ in Oxford Reference (online) 2020 <http://www.oxfordreference.com/view/10.1093/acref/9780195517965.001.0001/m-en_au-msdict-00001-0030540> (last accessed 4 July 2020).

93 James Mahalik, Micól Levi-Minzi and Gordon Walker, ‘Masculinity and Health Behaviors in Australian Men’ (2007) 8(4) Psychology of Men and Masculinity 240.

94 Stephen Tomsen, ‘“A Top Night”: Social Protest, Masculinity and the Culture of Drinking Violence’ (1997) 37(1) The British Journal of Criminology 90, 97.

95 As above at 100.

96 See generally, Nick Dyrenfurth, Mateship: A Very Australian History (Scribe Publications 2015).

97 Marilyn Lake, ‘Mission Impossible: How Men Gave Birth to the Australian Nation—Nationalism, Gender and Other Seminal Acts’ (1992) 4(3) Gender & History 305; Deborah Gare, ‘Dating Australia's Independence: National Sovereignty and the 1986 Australia Acts’ (1999) 29(113) Australian Historical Studies 251.

98 Radio National, ‘Mateship … the Word the Prime Minister Wants to Enshrine in the Australian Constitution’, Lingua Franca (online) 14 May 1999 <http://www.abc.net.au/radionational/programs/archived/linguafranca/mateship/3566940> (last accessed 3 July 2020).

99 Hannah McGlade, ‘Australia Is Still Fighting Racism and It's Time We Faced up to It’ ABC News (online) 27 November 2017 <http://www.abc.net.au/news/2017-11-27/australias-race-relations-will-be-examined-by-un-in-geneva/9198272> (last accessed 3 July 2020).

100 Ludivine Royer, ‘Using One's Right of Inspection: Australia, the United Nations, Human Rights and Aboriginal People’ (2014) 12(7) Revue LISA: Littératures, Histoire des Idées, Images, Sociétés du Monde Anglophone 1.

101 Andy Gargett, ‘A Critical Media Analysis of the Redfern Riot’ (2005) 6(10) Indigenous Law Bulletin 8, 9.

102 Tomsen above note 94; Kirkby above note 4.

103 Loukas Founten, ‘Drunk Teen Driver Spared Jail for Mate's Death’ ABC News (online) 15 May 2013 <http://www.abc.net.au/news/2013-05-15/drunk-teen-driver-spared-jail-for-mates-death/4691098> (last accessed 3 July 2020).

104 Chris Cunneen, ‘Racism, Discrimination and the Over-Representation of Indigenous People in the Criminal Justice System: Some Conceptual and Explanatory Issues’ (2005) 17 Current Issues in Criminal Justice 329; Walsh above note 63; Chris Cunneen, ‘Ethnic Minority Youth and Juvenile Justice: Beyond the Stereotype of Ethnic Gangs Contemporary Comment’ (1994) 6 Current Issues in Criminal Justice 387.

105 Walsh above note 63; Rob White, ‘Indigenous Young Australians, Criminal Justice and Offensive Language’ (2002) 5(1) Journal of Youth Studies 21.

106 While international audiences might find ‘cunt’ especially abrasive, in Australian casual youth culture the word is an irreverent way to refer to friends (e.g. – ‘Hey, it's this cunt!’) or as a light insult equivalent to ‘asshole’ in the American lexicon (e.g. – ‘What a cunt!’). Despite this, offensive language offenses undergirded by the use of the word ‘cunt’ in public comprise the higher end of objective seriousness and result in higher sentences, followed by ‘fuck’ and ‘shit’. See Elyse Methven, ‘“Weeds of Our Own Making”: Language Ideologies, Swearing and the Criminal Law’ (2016) 34(2) Law in Context 117.

107 Worcester v Smith [1951] VLR 316.

108 Romeyko v Samuels (1972) 2 SASR 529 at 563.

109 White above note 105; Methven above note 106.

110 ‘Wogs and Lebs’ variously refers to migrants from southern Europe and Lebanon, whose claim to whiteness in Australia and its social space is deeply contingent on pro-sociality, class and respectability. Greg Noble and Scott Poynting, ‘White Lines: The Intercultural Politics of Everyday Movement in Social Spaces’ (2010) 31(5) Journal of Intercultural Studies 489.

111 See, for example, Jeff Waters, ‘Secret Police Operation “Targeted” African-Australians’ ABC News (online) 8 March 2013 <http://www.abc.net.au/news/2013-03-08/secret-police-operation-targeted-african-australians/4561566> (last accessed 5 July 2020).

112 Michael Keith, ‘Making the Street Visible: Placing Racial Violence in Context’ (1995) 21(4) Journal of Ethnic and Migration Studies 551.

113 Frank Rudy Cooper, ‘“Who's the Man?”: Masculinities Studies, Terry Stops and Police Training’ (2009) 18(3) Columbia Journal of Gender and Law 671, 674.

114 In Australia, only anecdotal evidence is available about the racial composition of the police force, but that evidence supports the numeric and institutional dominance of white officers in state police forces. Sarah Farnsworth, ‘Victoria Police Consider Race Data Collection’ ABC News (online) 20 December 2016 <http://www.abc.net.au/news/2016-12-20/victoria-police-consider-introducing-race-data-collection/8101430> (last accessed 3 July 2020); Melissa Phillips, ‘Mistreating Minorities: Victoria Police and Racial Profiling’ The Conversation (online) 21 February 2013 <http://theconversation.com/mistreating-minorities-victoria-police-and-racial-profiling-12307> (last accessed 3 July 2020).

115 Santina Perrone and Rob White, ‘Young People and Gangs’ (2000) 167 Trends & Issues in Crime and Criminal Justice 1.

116 Cooper above note 113 at 692.

117 As above at 701.

118 See Benjamin T Jones, ‘Australian Politics Explainer: The White Australia Policy’ The Conversation (online) 10 April 2017 <http://theconversation.com/australian-politics-explainer-the-white-australia-policy-74084> (last accessed 3 July 2020).

119 Colin Tatz, ‘Genocide in Australia’ (1999) 1(3) Journal of Genocide Research 315.

120 Mark Finnane and Fiona Paisley, ‘Police Violence and the Limits of Law on a Late Colonial Frontier: The Borroloola Case in 1930s Australia’ (2010) 28 Law and History Review 141; Barry Morris, ‘Frontier Colonialism as a Culture of Terror’ (1992) 16(35) Journal of Australian Studies 72.

121 See, for example, Ceridwen Dovey, ‘The Mapping of Massacres’ The New Yorker (online) 7 December 2017 <https://www.newyorker.com/culture/culture-desk/mapping-massacres> (last accessed 4 July 2020).

122 Every above note 2.

123 Leticia Funston, Sigrid Herring and ACMAG, ‘When Will the Stolen Generations End? A Qualitative Critical Exploration of Contemporary “Child Protection” Practices in Aboriginal and Torres Strait Islander Communities’ (2016) 7(1) Sexual Abuse in Australia and New Zealand 51.

124 Thalia Anthony, ‘Deaths in Custody: 25 Years after the Royal Commission, We’ve Gone Backwards’ The Conversation (online) 13 April 2016 <http://theconversation.com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109> (last accessed 5 July 2020).

125 Aileen Moreton-Robinson, ‘Writing Off Sovereignty: The Discourse of Security and Patriarchal White Sovereignty’ in The White Possessive: Property, Power, and Indigenous Sovereignty (University of Minnesota Press 2015) 137; Robyn Moore, ‘Whitewashing the Gap: The Discursive Practices of Whiteness’ (2012) 5(2) International Journal of Critical Indigenous Studies 3; Maryrose Casey and Liza-Mare Syron, ‘The Challenges of Benevolence: The Role of Indigenous Actors’ (2005) 29(85) Journal of Australian Studies 97.

126 Moreton-Robinson as above at 152.

127 As above.

128 Aileen Moreton-Robinson, ‘The House That Jack Built: Britishness and White Possession’ (2014) 10(2) Critical Race and Whiteness Studies Journal 21; Moreton-Robinson above note 3.

129 Indeed, a 2014 study following the implementation of the reforms found that all but one one-punch manslaughter defendants from 1998 to 2013 plead guilty prior to trial. The case that didn't was secured as a manslaughter conviction.

130 Block above note 14.

131 Crimes Act 1900 (NSW) s 25A(3).

132 Western Australia v Woodley [2015] WASCSR 114; Ferguson and Robson above note 10 at 44.

133 Garth v R [2016] NSWCCA 203. Note: Because assault causing death matters are committed to the NSW District Court, while manslaughter cases are more commonly committed to the NSW Supreme Court, their sentencing remarks are not reported.

134 Re: Matthew Domio [2018] NSWDC 16. See above.

135 Crimes Act 1900 (NSW) s 25A(1)(b).

136 As above at div 3.

137 R v Katarzynski [2002] NSWSC 613 at [28].

138 As above.

139 Mark Israel, ‘Ethnic Bias in Jury Selection in Australia and New Zealand’ (1998) 26(1) International Journal of the Sociology of Law 35; Thalia Anthony and Craig Longman, ‘Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds’ (2016) 6(3) International Journal for Crime, Justice and Social Democracy 25.

140 Tomsen above note 94.

141 See, for example, Diane R Follingstad, Regina D Shillinglaw, Dana D DeHart and Kathryn J Kleinfelter, ‘The Impact of Elements of Self-defense and Objective Versus Subjective Instructions on Jurors’ Verdicts for Battered Women Defendants’ (1997) 12(5) Journal of Interpersonal Violence 729; Gillian Daly and Rosemary Pattenden, ‘Racial Bias and the English Criminal Trial Jury’ (2005) 64(3) The Cambridge Law Journal 678.

142 For a summary of the history of the law of self-defence using the bar-room fight theory, see Victoria Nourse, ‘Self-Defense and Subjectivity’ (2001) 68(4) The University of Chicago Law Review 1235.

143 George Syrota, ‘Consensual Fist Fights and Other Brawls: Are They a Crime?’ (1996) 26 University of Western Australia Law Review 169.

144 Varying depending on how the charge is articulated. As NSW is a common law manslaughter jurisdiction, there is no single prescribed mens rea. The most common manslaughter charge for drunken violence is unlawful and dangerous act manslaughter. In that, the standard is that the act that caused the death was unlawful and ‘one that a reasonable person in the position of the accused would have appreciated was an act that exposed another person to a risk of serious injury’: Burns v R (2012) 246 CLR 334 at [75].

145 Rule of Law Institute of Australia, Explainer: Assault Causing Death in NSW, 5 February 2014 <https://www.ruleoflaw.org.au/assault-causing-death-nsw/> (last accessed 5 July 2020). See also, Jackie Charles, ‘“One Punch” Laws in Australia’, Rule of Law Institute of Australia (online) 27 August 2014 <https://www.ruleoflaw.org.au/mash-one-punch-laws-australia/> (last accessed 5 July 2020).

146 Lievre above note 51.

147 Julia Quilter, ‘Submission to the Statutory Review of Sections 25A and 25B of the Crimes Act 1900’ (NSW Department of Justice 2016) 34.

148 Australian Institute of Criminology above note 44.

149 See, for example, Australian Law Reform Commission, ‘Pathways to Justice: Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’ (ALRC Report 133, Australian Law Reform Commission, 28 March 2018) <https://www.alrc.gov.au/publications/indigenous-incarceration-report133> (last accessed 5 July 2020).

150 As at 2016, Indigenous Australians are incarcerated at a rate of 2346 adult prisoners per 100 000 adults. Australian Bureau of Statistics, Data Release 4517: Aboriginal and Torres Strait Islander Prisoner Characteristics, 8 December 2016 <http://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4517.0~2016~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics~5> (last accessed 5 July 2020).

151 Premier Barry O’Farrell, ‘Second Reading: Crimes and Other Legislation Amendment (Assault and Intoxication) Bill 2014’ (NSW Legislative Assembly, 30 January 2014) <https://www.parliament.nsw.gov.au/bill/files/30/2R%20Crimes%20and%20Liquor.pdf> (last accessed 5 July 2020).

152 Handelsman and Gupta above note 17.

153 Julia Quilter, Luke J McNamara, Kate Seear and Robin Room, ‘Criminal Law and the Effects of Alcohol and Other Drugs: A National Study of the Significance of “Intoxication” in Australian Legislation’ (2016) 39(3) University of New South Wales Law Journal 913.

154 Quilter above note 77 at 440.

155 Quilter above note 77.

156 As above at 440.

157 As above at 441.

158 Kate Warner, ‘Gang Rape in Sydney: Crime, the Media, Politics, Race and Sentencing’ (2004) 37(3) Australian & New Zealand Journal of Criminology 344; Gargett above note 101.

159 See, for example, Cunneen, ‘Racism, Discrimination and the Over-representation of Indigenous People in the Criminal Justice System’ above note 104.

160 Aileen Moreton-Robinson, ‘Virtuous Racial States’ (2011) 20(3) Griffith Law Review 641.

161 In Australian discourse, whiteness is taboo. Because of this racial taboo, Australian government statistics do not measure race and data and scholarship on racism is scarce. See, for example, Damien Riggs and Martha Augoustinos, ‘The Psychic Life of Colonial Power: Racialised Subjectivities, Bodies and Methods’ (2005) 15(6) Journal of Community & Applied Social Psychology 461.

162 White above note 105.

163 See, for example, Kevin M Dunn, ‘Repetitive and Troubling Discourses of Nationalism in the Local Politics of Mosque Development in Sydney, Australia’ (2005) 23(1) Environment and Planning D: Society and Space 29.

164 See, for example, Elizabeth Moore, ‘The Use of Police Cautions and Youth Justice Conferences in NSW in 2010’ (2011) 75 Crime and Justice Statistics Bureau Brief 1; Nadine Smith, ‘Why Is the NSW Juvenile Reconviction Rate Higher than Expected?’ (2010) 146 Crime Statistics and Research: NSW Crime and Justice Bulletins 1.

165 ‘Law Society of NSW President-elect Pauline Wright said the State's one-punch legislation was unnecessary and should never have been enacted. “It was already an offence to assault a person causing death,” she said.’ Lievre above note 51; ‘President of the NSW Bar Association, Phillip Boulten SC, said today. ‘Mandatory sentencing is a “one size fits all” form of justice, which fails to take into account the individual circumstances of each case.’ NSW Bar Association above note 78.

166 Quilter above note 21; NSW Bar Association above note 78.

167 Raewyn Connell, ‘King Hits: Young Men, Masculinity and Violence’ The Conversation (online) 21 January 2014 <http://theconversation.com/king-hits-young-men-masculinity-and-violence-22247> (last accessed 5 July 2020).