This is the transcript of the FWF2020 event, Intersections of the Law. Visit the podcast page to listen to the event.
Nikki Anderson 00:05 Hi, my name is Nikki Anderson and I’m the director of the Feminist Writers Festival. Welcome to this podcast of our FWF 2020 session, Intersections of the Law, made possible by Creative Victoria. Here, lawyer and activists Fernanda Dahlstrom, transgender advocate Sally Goldner and Human Rights Law Centre senior lawyer Monique Hurley discuss the pressing issues for women and non-binary people of all backgrounds in fair and equal access to legal justice. We acknowledge that this recording took place across Australia on First Nations lands, lands whose sovereignty has never been ceded.
Meg Dench 00:46 Welcome to the Feminist Writers Festival, everyone. My name is Meg Dench, and I’m on the Board of FWF. Today’s session is Intersections of the Law. This conversation may discuss violence or other content which causes distress. If it raises any issues for you we ask that you seek help such as via one 1800 respect or Lifeline on 13 11 14 or whichever professional support you may have in place. Now, please let me introduce our wonderful panel today. Fernanda Dahlstrom is a writer, editor and lawyer. Fernanda has worked as a solicitor in Criminal Law, Family Law, Child Protection Law and Domestic Violence law in the Northern Territory and Queensland. Sally Goldner has over 20 year of involvement in Victoria’s LGBTQIA plus communities including Transgender Victoria, 3CR’s Out of the Pan, and Bisexual Alliance Victoria treasurer. She was the 2015 LGBTI Victorian of the year, joined the Victorian Women’s on a roll in 2016 and received an order of Australia in 2019. Monique Hurley is a senior lawyer at the Human Rights Law Centre, where she works advocating for all people behind bars to be treated with dignity. Monique has previously worked as a lawyer at West Justice and then the North and North Australian Aboriginal Justice Agency. Please now let me hand you over to our chair Monique Hurley. Thank you.
Monique Hurley 02:07
Thank you very much for that Megan. Hi, everyone. I’m Monique and I am a lawyer at the Human Rights Law Centre. My pronouns are she/her and for our visually impaired friends I’m a woman in my early 30s with brown hair and I’m wearing a top with some bright yellow flowers on it, coming to you today from my living room. And I also want to acknowledge that I am zooming into today’s session from the unseeded lands of the Kulin nation. It always was and always will be Aboriginal land. I think it’s particularly important in a session on intersections with the law happening during NAIDOC week, we acknowledge the role of the law and the legal system plays in enabling systemic racism to continue and to frustrate true justice for Aboriginal and Torres Strait Islander people. And so, on that note, we’re here to talk about intersections with the law and I’m feeling very privileged to be here with Sally Goldner and Fernanda Dahlstrom. I’m going to start by asking each of you to tell us about your first or most formative experience with the legal system and what you took away from that system. And so, starting with Sally and then jumping to Fernanda.
Sally Goldner 03:22 First and foremost, I acknowledge that I’m on the land of the Wurundjeri people and acknowledge my local people the Bolin Bolin which, according to my references, translates into I believe originally meaning Lyrebird and from the nearby Bolin Bolin Billabong where I am, I’m around 20 kilometres from the mouth of the Yarra Yarra River, I use the pronoun she/her and, for those who are visually impaired on the zoom today, I’m wearing a red and black patterned dress, a sort of silver rope style high necklace, three badges one in the rainbow colours with the black and brown stripes, a bi-coloured badge which says visibility with the emphasis on the ‘bi’ and a trans coloured badge, which is appropriate for discussion on law reform, I support trans birth certificate law reform. And, in the background, I have three flags of the rainbow communities the pansexual flag, which is dark pink, yellow and blue, the rainbow flag, and also two signs which say ‘save the bisexual whales’ and ‘save the pansexual whales’. I would very much acknowledge we’re in NAIDOC week but I think if I may, we’re also in Trans Awareness Week, and we have the colours of the trans flag, the pink, white and blue. And it’s also very functional because you don’t see everything in my study and it covers up the coat rack. My first encounter with the law and I think the first one of note was 1998 and I had only recently affirmed my gender identity full time. I was working in my first accounting role as my authentic female self and it was proving stressful. There were things I hadn’t been told about the role, and so I decided to try to do some self-care and I took a lunch break. I went out, got some lunch set in my car near a park. I’m sitting there minding my business, speeding to unwind eating lunch, listening to some music on this car stereo and glancing at a magazine then, all of a sudden, there’s a knock on the side window, content warning, sort of re-enacting excessive masculinity, and probably queerphobia. ‘What are you doing here? This is a park inhabited by pedophiles’. The clear implication was because I’ve looked weed in inverted commas that I was a pedophile, which was pretty appalling. I tried to complain to the then ironically named police ethical standards now equally ironically, named police professional standards to be taught all that was Sergeant so and so he’s a good family, man. Gee, thanks. I really needed to know that. And they said I was looking at children walking by while I was eating lunch and looking in a magazine. So I don’t really know how that’s, that could be the case. But that certainly wasn’t my words. So it didn’t leave me with a good taste of police and policing in terms of diversity. And it goes, the whole attitude goes so much too, in a sense of sort of toxic masculinity, an aggressive attitude that we sadly have seen so much this year, both in lockdown and in other things and, on EQ and other great people in the community legal sector work with it on a day to day basis. I know Fernando wants to talk more about it as well. But it’s toxic masculinity in a sense of misuse of power, not just in terms of body or gender, but all sorts of things. You wrote processing other things, which I think is a theme that we want to explore a bit today.
Monique Hurley 07:06 Thank you for that Sally. And over to you Fernanda.
Fernanda Dahlstrom 07:10 Thanks, Monique. I’m just going to begin with for the visually impaired. I’m a woman in my late 30s. I’ve got short brown hair. I’m wearing a blue top and I’m standing in my lounge room. I’m zooming in from Brisbane, which is unceded, Yuggera and Turrbal country. In terms of my earliest experiences with the law, I’ve had a lot of early contacts with the criminal justice system and the prison system. Because I grew up in the care of a single mother and we, until I reached the age of about eight, we had quite an ordinary, fairly middle-class life. I understood that she was making her living by running quite a successful business as a language consultant. We were living in the bush in a rural area outside Ballarat, and I was going to a private school, Ballarat Grammar. My mum was quite highly educated and intelligent and an ethical type of person, we were both vegetarians, we spent most of our time when we’re at school and work reading. And then one day when I was eight, I got out of school and found out that she was in jail. And for me, that came totally without any foreshadowing or context. And what I was told was that she had been charged with credit card fraud and stealing or something along those lines, I can’t remember the precise charges on that first occasion. I was given to understand that she was innocent and that it was a setup against her. And she was in jail for a couple of weeks on remand, and then she got out and we went back to normal. And then six months or so later, it happened again. And that was just the beginning of a pattern of her being in and out of prison for fraud and other property offences for the rest of my childhood. She got out for the last time when I was 18 and hasn’t been in trouble again since then. So, at the time I throughout my childhood and adolescence, I believed that she was innocent and that it was all set up against her. And spoiler alert that turned out not to be the case. But I didn’t discover that until many years later. But I did have a lot of contact with a lot of the criminal justice system from a very early age. I started visiting her as an eight-year-old. She was in a fairly women’s prison, which was one of the main prisons in Melbourne at the time. And when you visit someone in prison at that age, as a child, you’re allowed to go in, right into the prison and to spend an entire day in the prison, and you have access to all the areas that the prisoners have access to. So I became quite familiar with prison life and with prison customs, and with some of the situations the other women in prisons were in. So from a very early age, I was aware of things like the traumatic practice of strip-searching women on a regular basis when they go in and out of court, or before and after visits with families. I was aware of the very negative effects that was having on women, particularly those who’ve been through sexual assault and abuse. I was aware of things like the regular suicide attempts in the prison, people not getting adequate access to their kids and to their families and to other services that they needed. And I also heard about, and witnessed, a lot of very gratuitous bad behaviour by police and prison officers, including directed at me, as a child. So, it was easy for me to believe my mother’s claims about her entire situation being set up because I saw so much of the unpleasant underbelly of the criminal justice system. And it was easy to believe that people who were doing these petty cruelties on a day to day level were also involved in this large scale conspiracy to dial people for things that I hadn’t done. After I became an adult, I eventually looked into my mother’s past and the things that she was imprisoned for and discovered there was an abundance of evidence that she did, in fact, do the crimes that she was remanded and eventually sentenced for over that decade, which I think was a surprise to me, nobody else had been taken in with her claims of that being a conspiracy. So, my perspective on the criminal justice system has shifted a lot since that realisation. But my early observations about the many other forms of injustice involved in the criminal justice system and in women’s prisons stand unchanged and my realisation that my mother was guilty of the offence that she did time for doesn’t in any way, change or belittle the real injustices that she was subjected to as a women prisoner.
Monique Hurley 13:06 Thank you so much for sharing that. And so you went on to become a lawyer and have spent a lot of time working in the law and writing about the law, and particularly its impact on women. Your essay references that the incarceration rate for women is increasing much faster than men. And I was hoping you could talk us through why the rates of imprisonment for women are really skyrocketing at the moment.
Fernanda Dahlstrom 13:35 Sure. So I guess there are two parts to that question. The first one being why is the incarceration rate skyrocketing across the board? And the second being why is it increasing so much faster for women than for men? The overall incarceration rate has increased by something like 70% in the last 10 years. And it has been due to changes in sentencing practices, changes in bail practices, and changes in policing practices. In the last 20 years, there’s actually been, in Australia, an overall decrease in the overall crime rate. But there has been an increase in the incidence of particular types of crime, there’s been an increase in drug-related offending. There’s been an increase in minor property offences, theft and what have you and in public disorder offences. There’s also been the introduction of mandatory sentencing in a lot of states and territories. So in a lot of jurisdictions in Australia, if you’re found guilty of certain drug offences, and under certain circumstances, the court doesn’t have the discretion not to impose a custodial term. Also, in the last couple of decades, there’s been a lot of changes to bail laws and bail practices in the different states and territories. And a lot of it’s been in response to public pressure that occurs every time a serious crime gets committed by somebody who’s on bail, or somebody who’s on parole, or on a supervised order, or whatever. And there’s this perception that the crime has occurred because of a failure in the legal processes that allowed them to be living freely in the community, which really isn’t the case. In a lot of instances, the person was put through the correct procedures, and the correct decision was made by the decision-maker at the time with the information they had. But with hindsight being what it is, everything seems obvious, and so there are people calling for violent offenders not to be bailed. And that’s led to it being harder and harder for people to get bail. And people being granted bail on much more arduous conditions. So, courts have been empowered to impose bail conditions that require people to complete rehab programs, for example, if it’s drug or alcohol-related offending, that require people to have a fixed address, which makes it hard for homeless people to succeed in getting bail. And it’s also becoming a lot more likely that people are going to breach their bail because of unrealistic bail conditions being imposed, that people are not able to comply with. So, in terms of why the overall prison population is growing, a large part of it is because of a huge increase in the number of people being remanded. A third of our prison population is actually composed of people who are on remand, which is much higher than the percentage in comfortable liberal democracies like the US and the UK and New Zealand. And it’s more than twice what it was here in the 90s. In terms of why women’s incarceration rate is increasing, faster than men’s, that’s a phenomenon that is seen internationally, not just here. There’s no definitive answer to it. There have been a number of hypotheses put forward as to why it’s the case. And they are that essentially changes in policing practices and in sentencing and bail practices, disproportionately impacting women because of the circumstances under which women typically are charged with offences and sentenced to imprisonment for offences. Police have become a lot more punitive in the way they respond to public disorder offences in the last couple of decades, and also to drug-related offending, which are both categories of offences that are more likely to be committed by women. And I guess a personal anecdote from my own practice that comes to mind on this is about 10 years ago when I was working as a duty lawyer at NAAJA which is the Aboriginal Legal Aid Service in the top end of the Northern Territory. One Monday morning, I saw a lady in her 60s who was in custody in the cells. She’d been flown in from the community of Nhulunbuy. And she was a lady who had maybe one or two very trivial entries on her criminal record 20 or 30 years earlier, she was not a habitual criminal by any means. And what had happened was she had been caught stealing two bottles of alcohol out of somebody in Northbridge and she had been summoned to come to court in Nhulunbuy, and she’d failed to appear on the day so, a warrant had been issued for her arrest. And the police eventually found her in the community and they found her when the court wasn’t sitting because the court only sits every second week in Nhulunbuy. And rather than just someone saying she had to come to court again, the next time court was sitting, they took her into custody flew to Darwin, kept her in the cells over the weekend and then brought her into court on the Monday where I pleaded her up and she got released without penalty in consideration of the fact that she’d spent three days in custody for something that you would never get three days in custody, he thought it was a very trivial offence. And that to me just really exemplifies the illogical and punitive approach that police take to really minor offending. Another factor, I think, is the way police responds to domestic violence allegations. Commonly, when a woman contacts the police with a domestic violence allegation, and the police come out to the scene, and the woman says, my partner is bashing and the man says, no she’s bashing me. Rather than trying to get to the bottom of what has actually occurred, the police will just take out reciprocal domestic violence orders in favour of each of the people so, to each of the partners. And usually, when you’ve got a domestic violence order, there’s a condition that you’re not allowed to assault or harass or abuse the particular person. But there are also often other conditions on those orders. And when alcohol or drugs is involved, a common one is that you’re not allowed to have contact with the person when you’re intoxicated. And if you have an order, like that taken out against you in relation to your partner, the chances of you breaking it are pretty high. So, I think practices like that are also affected in why women are being criminalised at a higher rate than they were.
Monique Hurley 21:39 Thank you for that. And now, Sally, just to bring you into this conversation, your essay talks about legal issues that are often faced by trans and non-binary people, and that that includes laws and systems that deny identities. And can you please speak to some of the legal issues faced today by trans and non-binary people? And comment on whether you think the law is properly equipped to grapple with intersectionality?
Sally Goldner 22:06 I’ll try and do a summary answer here. So, we’re slowly, moving in the right direction, but very slowly. Then we start looking, say beyond Victoria, Australia, and into a world setting and there are so many things that come to mind and one, which bounced off Fernandez’s comment was not so much in relation to domestic violence, but I’m thinking back to the performance by Selena Jenkins at a Fringe Festival a few years ago. It was a wonderful performance about ‘my home’ and it goes through all the homes that Selena handled and lived in and then they bought this wonderful place in the hills to the east of Melbourne and started facing homophobic harassment from a neighbour. All the police could say, well, you can put a camera up and catch them or something, that sort of thing. And it’s sort of paralleled what Fernando was saying that police are often not equipped to deal with these sorts of more human issues like intimate partner violence and family violence. There was also the situation some years ago of a trans woman who was taken into custody, and her previous male name was still on record, so she had to hold up the plate with her male name and features on it. And whilst it’s not ultimately proven that the situation early this year at St Kilda a police station with Dean Laidley was transphobic. I would be willing to bet money that, had Dean Laidley been arrested in a shirt and trousers and no makeup, there would be less chance of those photos being sent out. So, I think that there is this underlying macho, simple language element or gender derogatory approach to gender, the police face and that certainly comes across for trans people. There’s also the issues for trans people broadly that some have reported during the lockdowns in the pandemic this year, that while they were going out for totally legitimate purposes, such as food, exercise, medical care, that transphobic neighbours were falsely dobbing them in, which means you’ve then got to interact with police who aren’t helpful in the first place and it creates on more stress on more stress on more stress. So there’s just some of the sort of day to day issues that can happen broadly and in this unprecedented year. When it comes to broader systemic issues, it can be challenging for people to, in terms of cost and process, to change the first name on their documents and then the marker. We did have the birth certificate laws coming in to force in Victoria on first of May this year and I’m just deliberately looking away for a second to look at my own birth certificate that says female. I could never put it away in a drawer, it’s in a frame on my desk because it means so much to me, which is wonderful. However, not everyone can afford that. Yes, there is some support out there with mentioning that transgender Victoria thanks to a donation has a fund for people who can’t otherwise afford to change their name probably worth mentioning that. But of course, some people may not have access to that the connections in those sorts of things. And we still have three states and territories with birth certificate laws are, in my words, way below pass marks, so to speak. In New South Wales it’s still surgery based and in Queensland, one would hope with the re-election of the Alp government up there, and with the greens support, that we could see some movement. When I last head the Western Australian laws were stuck between the two houses, where it had passed the lower house but not the upper house. In addition, the constant lack of clarity around sport for trans people, and the unfairness trans women face. And whilst it’s not my area of expertise I would acknowledge that intersex women obviously can face that too. Women such as Caster Semenya and that whole gendering and the ‘laws’ that define people. And also, whilst there are laws, of course, they’ve got to be put into force and we see so often in general issues in generalist and specialist health care, where even though there are laws, people will not obey them. Lucille Kerr from La Trobe University wrote a great, well rather a well documented, report about this issue. But it’s sad that some of the things we’ve talked about, for example of a trans man who went in for an operation that would be relevant for someone who was assigned female at birth. And even though the person that changed their names living as male, some nurse said, well, you came into this world, as a woman, I’m referring to you as a woman next sort of thing. So, we can have laws, but it’s about pretty getting them into practice, and making people aware of them. And often, so much of the discrimination in healthcare or policing and laws can be on a very one on one basis. And, you know, it’s a sad society where we feel like we have to walk around with a webcam on our head to capture these things and have proof. So, there are these combinations of day to day systemic laws and practices. Also, laws make it difficult in practice say for people who are homeless, and so much of accommodation is gendered we’ve seen a wonderful advance by VincentCare, with their Ozanam House in Flemington road, which now has single rooms with a shower and a toilet each, which gets past some of those issues. But, people will say, ‘Well, I’m just enforcing the law, where’s your birth certificate?’ Now, I don’t know, I’ve never been homeless and I want to acknowledge that, but I don’t believe that a homeless person would be carrying around a copy of a birth certificate, even if they would have one that was reflected their sense of gender identity. So, there are all these sorts of issues which affect marginalised people. And of course, once we put more intersectionalities in, that will make it worse. I’m also thinking here of trans sex workers, which is why we need, say, decriminalisation of sex work. I know, there are campaigns in Victoria and Queensland run by peer-based sex work groups as well. And many trans people made a conscious and informed decision to do that form of work as have cis people as well. So, in line with the title of our session, I think intersectionality is really relevant here. And sadly, you know, whilst we want to treat everyone respectfully, police who maybe have these limited and limiting attitudes about power and kyriarchy won’t do it. And then there are issues in court systems as well. I was hearing, in a discussion with one of my colleagues during the week, some issues that perhaps court support workers need some more information to be supportive as well. So, there are all these structural issues. And of course, we all know that when it comes to court, sometimes the more money you have the more chance you have of getting the outcome that’s for you. So, trans people who are already facing disadvantage and intersectionality can face these issues both on the ground day to day and in the structure of our legal systems and practices.
Monique Hurley 30:26 And so, pivoting now to more of a kind of models for change and looking towards the future, your essay talks about the need to ensure that the law and the people and processes that enforce it fully understand concepts like equality and equity, can you talk us through what you mean by that and any ideas you might have for getting?
Sally Goldner 30:48 Yes so, when I think of equality and equity, I started out thinking of several slides, the first being the meme of three people of varying heights, who’ve been given one box each to stand on in order to watch a sports game over a wooden board fence. And the second slide, which talks about equity says, ‘well, we’ll rearrange the boxes so that the tall person who can see over the fence already doesn’t need a box, the middling person still has one box, the shorter person can have two’. Two things come to mind when I see these. One, how does that short person get up onto the two boxes, the other people have to help lift them up. And, if I can just have one moment of dry humour as a trained accountant, we shouldn’t be standing on rickety wooden boxes, that is terrible workplace health and safety. But, and then there’s the one with the third meme, which says, oh, let’s get rid of a board fence and just have a cyclone fence, which gives some protection, but now people can stand on the ground and don’t need boxes. Now, first of all, I acknowledge that meme may have some ableism. It may not be perfect, it doesn’t solve everything. But I think it’s a great representation of what we are trying to achieve. What are the barriers to being more inclusive? Is it making laws that affect birth certificates easier for people to access? So they don’t have to have surgery? Or they’re not costly? Those sorts of things? Is it training health care professionals? And then coming right directly to your question, one of the things that I find frustrating is the police procedures. For example, such as the more detailed and more recent incident that I put in my essay about the traffic officer. You know that these procedures are not designed in conjunction with the public, but that’s who they’re supposed to serve. So, I think we know-how, you know, one-sided and heavily weighted the scales are tipped to sort of police, policing, including police union, and to court systems. And so, you know, we all know we hear a lot we heard some wonderful sessions today involving lived expertise, so let’s bring in the lived expertise of those who have been through these systems, what went wrong? how can we be better? And maybe what has worked, so we can reinforce that and get that engagement in there. Now, I’ll let you know, pull out the elephant in the room, there’d be resistance from some people to that. I can almost hear those sort of police being interviewed on talkback radio, ‘these people don’t know what it’s really like out there?’ Well, I disagree. I think that having that expertise would make it easier for police to do their job. There’d be perhaps more trust with police from all parts of the public if we started having that sort of engagement where people had some sense of ownership of the systems and structures. And also court processes, well ironically my accounting background comes in again, I mean, a court system that was designed for commercial transactions 500 years ago, really, it’s perhaps not quite right for human issues like intimate partner violence, discrimination, harassment, vilification, those sorts of things, how can we take those processes, so there’s less stress on the people who are on the receiving end or similar words like victims survivors? I mean, I just find it ridiculous that you know, so many of these sexual harassment cases get thrown out, you know, that all the people that come forward can all be wrong. And you know, so many other things as well. So, how can we make these processes fairer, more respectful and more equitable, so that the barriers to justice are taken down? To go back to our analogy, how can we take down those wooden boards and how can we, you know, sort of get to that third meme where everyone’s on level ground? And it’s just about having those systems treating users with equality and respect, which is the basis of all interaction for any interaction at all between people.
Monique Hurley 34:56 In your essay Fernando, you quote the great abolitionist thinker, Angela Davis. Can you tell us what abolition means to you and why you think it’s important?
Fernanda Dahlstrom 35:06
Oh, well, abolition is the belief that rather than trying to reform the prison system, we should be working towards minimising and eventually completely eliminating it from society. It has its origins in the United States where the penal system has its origins in the slavery system with its very obvious agenda of racism, and capitalism. And it is more important than ever, to countries like the US and Australia at the moment that is going so much in the wrong direction, in terms of the expansion of the prison industry and the rising numbers of people getting incarcerated in circumstances where the crime rate isn’t even on the increase. I think the abolitionist theory is an important reminder that we do need to be working to not only oppose the privatisation of prisons, which we’ve been seeing increasingly since the early 90s, in Australia but also with opposing prison wholesale as a remedy for most forms of crime. I think the fact that we have seen such a lot of change in the last 20 years in the wrong direction, in terms of more prisons being built for the privatisation of the prison system, and more and more people going to jail is actually evidence that change is possible in response to changes in government policy. And if that negative change is possible in such a short space of time, it makes sense that changing the other direction would also be possible if the right policies were implemented.
Monique Hurley 36:56 Thank you for that. And now I’m just looking at some of the questions that have come in. And one of the questions I think is for Fernanda, how can we reconcile the lack of structural supports in prisons and rehabilitation, especially for a woman who are being released after a lengthy stint?
Fernanda Dahlstrom 37:16 Um, that’s a great question. I don’t have an easy answer for it. It is the ultimate irony of prison as a solution to anything, isn’t it? That it is supposed to be a rehabilitation centre, and yet we don’t provide any rehabilitative services, or very few to prisoners. And people coming out of prisons are almost always in a worse situation than they were when they went in and much more likely to re-offend than they probably would have been if they’ve been dealt with in some other way. So I guess, I guess I would say it’s not about reconciling it. It’s about opposing, it’s about opposing the prison system and opposing that paradigm of dealing this criminal justice in a punitive way, and in a way that others deem disadvantaged people who are fearful of the criminal law because of the circumstances, and coming up with more humane and more constructive ways of dealing with those people by supporting them through early interventions, through providing services at the time that they’re needed before people get to the stage of facing jail because they’ve committed offences. So things like mental health services, drug and alcohol services, affordable housing, all those things that are so crucial to keeping vulnerable communities from being criminalised.
Monique Hurley 39:01 I couldn’t agree more. Thank you for that. Fernanda. And another question that’s come in is, is there anyone doing it right? And hopefully, are there any examples of initiatives inside the justice system that you would point to here or elsewhere? And I’m thinking Sally, is that something that you would like to comment on?
Sally Goldner 39:23 Look, I think there are good people and I suppose you know, I can dive in here with the PSA that I put up about a very aggressive traffic police officer. And I suppose there are people fighting individually in the system. And after it seemed like this was a lost cause suddenly I and one of the people had given me a letter of support in that situation got a call from a female police officer in charge of the relevant district of traffic, who was quite wonderful. We did a zoom, and she had said look, I’m feeling really anxious in front of people, someone like yourself and the other woman, who I won’t name out of privacy, because you’re people who are very prominent in your communities. Now, that sort of vulnerability, that’s just being honest and the first thing that she said after that was ‘I’ve reviewed the police officers who made contact with you and their behaviour was inappropriate and over the top’. Which I think was a pretty good start. So, I think there are people trying their best in the system. One person who I do remember, who’s not in Victoria police anymore, was the second lead of the LGBTI Liaison Office, Scott Davis, who was a very, think, an honest person. But I think it’s trying to get through this systemic stuff. And of course, it’s impossible not to mention the four corners show earlier this week with the height and depth of the, if you like, of this systemic power, is trying to get things to be more systemic. So, there are other things, you know, that are happening well, in terms of courts and law. I mean, there are some police reference groups, but I think that this core, macho element of police, say, for example, is a problem. And so, you know, there are some good practice examples and people fighting so, there is good work slowly being done. Also people, such as St Kilda Legal Service and the Roberta Perkins Law Project for trans people, as well. But, it does seem like, to use an analogy, we’ve taken the top off a few weeds, so to speak in terms of power and balance. Now, how do we start uprooting and, you know, putting some of the plants we want into this system, so to speak? That’s the challenge. And I think that this conference is a start and somewhere we can network so groups facing similar things, whether it’s Aboriginal and Torres Strait Islander, LGTBQI Plus, and many others, can perhaps work together because I think there are obviously a lot of common threads and there might be a way where we can work through that.
Monique Hurley 42:24 Yes, the work about the Roberta Perkins Law Project is really incredible, incredible work. And I can see that the Feminist Writers Festival admin has posted a link in the chat. So I encourage everybody to check that out.
Fernanda Dahlstrom 42:44 And could I also just say something on that Monique, there have been some really successful trials of justice reinvestment in Australia and around the world. I don’t know how familiar people are with that phrase, that term outside of the legal profession, but justice reinvestment is a way of dealing with criminal offending where money is diverted away from the criminal justice system and back into the communities that have produced the offenders. So in the town of Burke, in New South Wales, they’ve done it really successfully. There’s a number of articles and videos about what’s been done in Burke, with justice reinvestment, if you look them up, I should have included them as my online recommendations. But they’ve had really, really good results in a fairly short space of time with targeting specific types of offending and the root causes. One thing that they did was, there were a lot of people getting charged with driving without a license, so they raised money to buy a car, and they just started giving free driving lessons to people who wanted to get their lessons and the police started volunteering their time, giving people diving lessons, which improved the relationship between the police and the community. And this was all at the initiative, I think of the Aboriginal elders in the community. And I’ve seen, like a really significant decrease in the number of types of attendance. So yeah, look that one-off, that’s a heartening example of something that’s being done.
Monique Hurley 44:21 Thank you for that. There’s been a few questions that have come through on abolition. And Fernanda, do you have any idea how seriously current governments around the world or even just in Australia are taking abolition? Is it really on the table? Or is it seen as too radical a concept?
Fernanda Dahlstrom 44:42 I know I don’t think I’ve seen any example of governments taking it seriously or even discussing it, but there are strong abolitionist movements in a lot of places. And there are community organisations springing up that are informed by abolitionist values and principles. So there are a lot of people working hard to try and reduce the prison population, if not government’s actively trying to do it.
Monique Hurley 45:18 Sally, do you have any thoughts on abolition?
Sally Goldner 45:21 Yeah, I think for a lot of so-called criminals, I think that you know, abolition would be incredibly helpful. Yes. If someone is, for example, I call cold-blooded gangland murderer, yes, we need prisons there. But when we’re talking about the sort of things that we, you know, we’ve heard you know, Fernanda talking about how women who retaliate against male partners are, incorrectly, you know, facing intervention orders and that sort of injustice, then, you know, abolitionism, I think has a strong place that so many offenders are there through, perhaps disadvantage and poverty, and we need to address also the, in conjunction with abolitionism, as well, I think that you know, we need to look at causes, not symptoms, so to speak, why do we have so many? And, you know, why do we have some of the trends we’ve mentioned? Why are marginalised groups like mental health, Aboriginal and Torres Strait Islander, and others facing disproportionate crime? Well let’s address the problems, and then maybe we’ll be preventative. So I think that the two can go hand in hand and that we can sort of get down the number of people in custody and only have those who really need to be there who really need to, you know, you’re really done some, say vicious things, rather than people who are just they’re sort of in a way through desperation and disadvantage. So, I think there’s a strong case for evolutionism and given more so as part of a holistic picture that just takes things on their merits rather than instantly going tough on crime and those sorts of well-overused cliches.
Monique Hurley 47:10 Yeah, I think abolition is often spoken about as, you know, a way to reimagine the future without prisons and thinking about how we might work, you know, as lawyers and advocates with that in mind and working towards that as the end goal. And I think that that’s, you know, increasingly becoming an important way for us to view the work that we do in the criminal legal system. And we’ve got some more questions. One for Fernanda is, how has the privatisation of prisons impacted on the treatment of people in prison and the criminal legal system more generally?
Fernanda Dahlstrom 47:53 Well, it has led to, I think, a falling of standards and also a decrease in transparency and accountability. And the most obvious example of that, that I can think of is the death of an Aboriginal elder in Western Australia about eight years ago, I think, who was being held in one of the private prisons in Western Australia and was being transported from between the prison and the court. And he was being transported through the desert in very hot conditions, and he died of heat exhaustion in the paddy wagon. And it wasn’t possible to ascertain how much was actually known by the people who had custody of him of the fact that the air conditioning was malfunctioning in that paddy wagon. And that’s something that would be would be verifiable if it was a correctional facility that was government-operated, and that was covered by freedom of information. I also think there’s just a profound conflict of interest in a private company operating a correctional facility that is supposed to be rehabilitative when its ongoing existence and profit depends on maintaining a robust prison population.
Monique Hurley 49:33 Thank you for that. Fernanda and for Sally, you mentioned neurodiversity in terms of treatment within legal systems. Is that something that you could please expand on a bit?
Sally Goldner 49:48 Oh sure, it’s something that I’m becoming increasingly passionate with along with LGTBQI plus, so neurodiversity, neuro processing, our brains processing information in different but equally valid ways. A basic one being that some people introverts, they get their recharge time by themselves, some people are extroverts who like recharging with other people. And because of course, we have to get rid of binary, there are ambiverts people who like bits of both, and we’re probably all are to some degree and be heard. And so it’s the idea of a spectrum. So for me, in particular, the one that interests me the trait, the highly sensitive person. And that’s really important to me because in plain language, highly sensitive people process all sorts of information in greater length, depth and breadth than the median of the population. So if I reach down here and make a sound with my wrapper for me is almost like a bomb going off. Whereas for some people, it’s just case rattling, that sort of thing. So, going back to the incident I described in detail my essay where this police officer eventually pulled me over and started going, ‘well, you have the right to say no comment’, but kept saying this asking these questions. Why did you do that? Why didn’t you do that? Why did you do that, as someone who, you know, has this trait that is really intense, whereas, for someone else, they might be able to remember to take deep breaths or something and go into a sort of, you know, fight or flight mode to some extent? And so I think this really has to be taken into account in all our justice systems, and it’s important for LGTBQI plus people in particular trans in that the other might large area of neuro processing is autism. And we found a significant overlap, to keep it simple, between trans and gender diverse in autism. We don’t know why, but it just seems there’s a lot of trans and gender diverse people on the autism spectrum. I’ve heard of surveys where the centre of the intersection is trans. And minimum 23% others 29%, but people who work on the ground, particularly parents of trans and gender diverse children say it could be 50%. So, therefore, we can’t ignore that. So what do all these things mean? And I think that the issue of the police, police are trained to treat any side of anxiety or nervousness is guilt? Well, that’s not really right. You know, if someones going to go at me saying, ‘why did you drive past me and this road?’, or whatever it is, you know, that’s going to cause me to flinch, they’re gonna think, ‘Oh, this person’s guilty?’. Well, no, I’m just really stressed. I’m also a trauma survivor from the, you know, toxic masculinity that I endured during the first roughly half of my life, and that sort of toxic masculinity that they’re doing is really going to put me off and throw me off balance. And therefore we need to be aware of all those forms. Now, I don’t claim to be an expert on autism, it’s not my lived expertise. But, I also understand that one factor could be that people on the autism spectrum like very direct language, and if you use metaphors or cliches that can be problematic. So, it is about being aware of how we communicate, and it really is, in plain language, probably better for lots of people. I mean, people who have a first language other than English, those sorts of things, and you know, it could be very much more helpful. So yeah, I think neuro processing really needs to be taken into account, and that police need to get that sort of retraining so that that assumption doesn’t happen. And it also comes into the broader assumption that there’s a whole range of situations for police. Now, yes, there might be difficult threatening situations for them where some intense action is needed. But given that the vast majority of place interaction is within is with innocent citizens. There’ll be some real, I’ll use the phrase civil offenders such as someone who’s speeding or whatever, and some criminal offenders I think there’s surely has to be a way we can train police to be aware of this so that the average citizen including neurodivergent, citizens, do get that respectful treatment, great, better interaction and ultimately building better trust with police and the law in the criminal justice system.
Monique Hurley 54:40 Thank you for that. And we have another question and I’ll get Sally and Fernanda to both answer this. Has COVID-19 and living through the pandemic changed your perception of the criminal legal system in anyways, and if so, what might they be? I’ll start with you, Sally.
Sally Goldner 55:02 Okay, I wish I could say otherwise. But the COVID situation hasn’t really reduced my sense of how I view. It’s less positive, I suppose is what I’m trying to say. And we saw so many of these things with the enforcement of lockdown laws that silly situations. For example, one that happened was two people who were from the same household walking in a park, someone else stopped to ask them for directions and before they knew it police have come over saying ‘you’re not from the same household, you’re having an illegal gathering’: Fine, fine, fine. And it’s just that sort of misuse of power. And there’s been so many others, as they were coined early, and again a little bit of dry humour, as the kebab boffins, as they were called, after the case in New South Wales. Yeah, that sort of stupidity and the people who you know, they had a horse to feed, they had to go more than five kilometres, they were fined. Well, if they didn’t feed the horse, they probably would have been given a fine by the RSPCA or something. It’s just this lack of common sense. And it’s just again, this misuse of power. And one of my best friends who I want to say a cisgender woman, regardless of sexuality, has had no major direct interaction with police but she felt nervous going out of home because of the way police were behaving. She’d had an indirect, sort of interaction once where she rang a police station and asked for the LGBTI liaison officer was told, ‘yeah, you don’t need to talk to them’ and she said ‘No, this is an LGBTI issue.’, ‘Mam you can’t talk to them’ which didn’t probably shape her perception. So, they’ve been some of the things in my immediate circles. But when I hear of some of the other things, you know, people who needed to access the injecting room in North Richmond which is a health issue. And you know, sort of, they’ve been fine multiple times. And of course, there’ll be possibly multiple intersectionalities going on there such as homelessness, for example. And it hasn’t really been impressive. And although things have happened during this year, which hasn’t been locked down related, such as the, I’m going to say a bit of a content warning here, the outcome of the horrendous case of the six police who have interacted with a disability pensioner, and the slap on the wrist fines. I won’t go into graphic detail, but they got slapped on the wrist rather than really all six of them should have been given a very stiff sentence, probably some thrown out. We’ve seen the, I better just say neutrally, the outcome of the initial IBAC investigation into the Hares & Hyenas invasion, and so many other things. And I know it seems so long ago, and I would definitely say content warning here, the situation of the police officer in Queensland earlier this year, late February, early March before lockdown happened, and his victim-blaming type remarks on you know, sort of the family who are no longer with us because of the horrendous situation of family violence. You know, it’s just been a lot of them. And, and it is incredibly saddening, and disheartening that, you know, this is happening. And so I haven’t been left with a good impression. And I haven’t seen a willingness to investigate this. I mean, yeah, when the dust settles, and you know, we are seeming to be going in the right direction and fingers crossed for a vaccine. I think there has to be some sort of official investigation into these sorts of misuses of power, where people can come forward safely, without fear of retribution, tell these stories and, more to the point, what do we do to change these systemic imbalances? I think we can talk about them a lot. But how do we then get that interaction going so that we do get the systemic change we need? And I know that Fernanda will probably have a lot to say and I’ve just seen a question come up in relation to that. So I’ll throw it to Fernanda.
Monique Hurley 59:24 Yes. Fernanda, if you would like to add anything to that. And also, I’ll give you this to throw into the mix as well. If you could have Australian police forces change one thing tomorrow in how they operate. What would that be?
Fernanda Dahlstrom 59:39 I saw that question in the chat and I got a bit distracted by it. I think. I would probably say the one thing I would like to change about the police is I would like the police to have to have some level of education or life experience before they joined up. At the moment, the way I understand it, most police join up when they’re 18 or 19, they generally don’t have a degree or a lot of experience in any working in any other field. And there’s a traditional culture, a culture of lack of transparency and of bloke like behaviour within the police. There is a code of silence, which requires you not to blow the whistle on colleagues, even if you know they’ve done the wrong thing. And I think it’s must be incredibly difficult for a young person going into that culture, even if they have the best of intentions to stand up to their older and more senior colleagues, even when they know they’re in the right. I think if they were required to do some other work or study first, they would be better placed to resist that culture and to help establish a better one.
Monique Hurley 1:00:55 Thank you for that. The other part of the question that I posed to Sally was whether COVID-19 and living through this time has changed your perspectives on the legal system?
Fernanda Dahlstrom 1:01:08 Yeah, I totally agree with what Sally said about seeing some really silly police practices, silly and punitive and counterproductive practices by the police in enforcing the letter of the law in relation to COVID regulations rather than doing things like responding to domestic violence allegations, which were through the roof when we’re in lockdown. I think the only positive development I saw during the lockdown was the courts starting to be a lot more open to people dealing with court matters remotely. And I know that sort of cuts both ways in that some people may have issues that they would prefer to an in-person in court, even if it is just an administrative listing or conscious mention or an adjournment or whatever. But I think for a lot of people, it probably had a lot of advantages, especially for women with little kids, not having to go physically to court with all the little kids in tow, for people with disabilities and, you know, mobility issues, transport issues, I think that was probably an advantage. And I hope it’s something that the courts retain in the future.
Sally Goldner 1:02:32 Can I just do a quick bounce back off that? One thing that came to mind was many trans people, if they were in a safe home environment, said they didn’t have to worry about finding appropriate toilets everywhere. Now, yes, we employ that we need to make sure we have them. But they said they weren’t worried about this being, you know, having toilet issues or being misgendered or anything, and they could feel safe in their own home. So, I think one of the things that I think is beginning to emerge as we’re beginning to see some light at the end of the sort of pandemic tunnel is that there’ll be things we can take out of this year that will go forward and we can get a bit of mix for lots of people. So you know it would just be a matter of thinking through how can we can keep applying that to the criminal justice in the court system. So it is a greater win-win for all.
Monique Hurley 1:03:24 Thank you. We’ve got just five minutes left in this session. And there’s one more question that’s come in, and I might get you both briefly to speak to it if you have any ideas, but the question is, are there any examples here or overseas, you’re aware of where the sort of systemic overhaul of police culture and policy needed has been achieved? Or at least there’s been progress in the right direction? And maybe starting with you? Fernanda?
Fernanda Dahlstrom 1:03:56 That’s a fantastic question. But I’m sorry. It’s not something I’ve looked into. So I don’t know.
Monique Hurley 1:04:02 Do you have any thing to offer on that front, Sally?
Sally Goldner 1:04:06 I think there is one declaring my long interest in the Victorian Police Community Encounters program. And, and that’s been jokingly described as a cross between a living library book and speed dating, in that, you know, for each batch of new police and PSA recruits. And obviously, this was pre-COVID and I’m not sure what happened during this year, but people would go out to the Academy in Glen Waverley, and they’d be, say, one person from diverse communities, because of course, we are intersectional, who would sit with say four or five recruits at a time, and the recruits would answer questions about themselves, their interactions with police, naturally with rights declined to answer or point out in inappropriate questions. And I think that has done some good work and again, declared my interest as someone who is involved in it for a long time, and there are all sorts of biases and unconscious biases that got uncovered and you know, and as someone who has been frequently involved for a long time, it does some good. Perhaps the problem lies in you’re middle-ranking police who can be the proverbial, crusty veterans, such as people who run the stations, you know, and have that day to day operational influence from middle ranks, perhaps haven’t been exposed to that. And so the newer police coming through is sort of facing that brick wall of attitudes or brick ceiling if we can call it that. So, I think that if that program could be extended to existing police, and perhaps maybe police do a bit of a refresher of it now and then, and be encouraged to do that, as part of ongoing training, and that would be seen positively if they did that. I think that is certainly one good program that has worked very, very well. And I also did some work myself a few years ago now with federal police in the ACT, who seemed to be doing well on at least LGBTI issues, I can’t talk for more intersectionality. So, there are these things out there. But it just seems like in the last few years, maybe they’ve been pushed back a bit. So that they are there, we’ve got these sporadic examples of town, I suppose the question is how we can make them more widespread, and link depth and breadth of criminal justice.
Monique Hurley 1:06:33 I really hope the use of technology like how Fernando was talking about earlier in terms of if it’s someone’s preference, to be able to use technology to access court or particularly in prisons, people being able to have visits remotely, has been something that a lot of people in prison have found to be good, although, you know, that really needs to be an option and shouldn’t ever be a substitute for in-person visits. And that should, you know, we hope will resume in Victoria soon in the prisons. And just to wrap up I wanted to do Sally and Fernanda wanted to recommend something for the people zooming in today to go away and read starting with you, Sally.
Sally Goldner 1:07:20 I think that because it’s something that perhaps doesn’t get talked about I’m going to recommend some of the resources and rating I had on euro processing because I think this is something that doesn’t get enough discussion so and you know, the website, hsperson.com, the highly sensitive person and all the books that come in their books on introverts, where there can be a lot of depth of processing. And Susan Cain’s book, ‘Quiet: The Power of Introverts in a World That Can’t Stop Talking’, although the other introvert books that I read earlier, ‘Introvert Power’ and ‘Introverted Advantage’ are good and say that introverts appear very extroverted and can’t stop talking when we’re passionate about something like diversity and social justice, which I think I’ve done a bit this afternoon and loving it. And so, I really recommend people look at those books, and I don’t want it for a second to deny extroverts. It’s like all forms of diversity. If we value all of them and what they bring, and you know, in any setting, then we get the best out of everyone. So I’ll go with those ones for me.
Monique Hurley 1:08:36 Awesome, and anything that you would like to recommend to read Fernanda?
Fernanda Dahlstrom 1:08:39 I don’t have any specific titles, but I would recommend that I can recommend people to look into what’s been written about justice reinvestment and the trials that have been done of justice reinvestment, because although abolitionism might not be getting discussed seriously by governments, justice reinvestment does to a greater extent, and it is the first step along that process.
Monique Hurley 1:09:04 Thank you very much for that. I invite everybody now to join me in thanking our incredible speakers, Fernanda Dahlstrom, and Sally Goldner. Thank you all for being part of the Feminist Writers Festival 2020.
Nikki Anderson 1:09:21 We hope you enjoyed the conversation. Our thanks to the speakers and chair, our podcast partner, Listen Up Podcasting, Creative Victoria, The Besen Family Foundation and Queen Vic Women’s Centre for vital funding support. For more FWF goodness, visit our website, feministwritersfestival.com and find us on socials.