Papers by Claire Spivakovsky
Journal of Intellectual & Developmental Disability
International and Australian domestic evidence suggest that the prevalence of violence against pe... more International and Australian domestic evidence suggest that the prevalence of violence against people with disability is substantially higher than for the rest of the community. Much of the violence experienced by people with disability in Australia occurs within the purview of a variety of institutions, including group homes, large residential institutions, Australian Disability Enterprises (that is, disability employment facilities), schools, psychiatric facilities, hospitals and correctional facilities. This comment discusses recent domestic and international legal and political attempts to grapple with the issue of institutional violence against people with disability, focusing in particular on a series of Senate Committee inquiries into abuse and violence, regulation related to the National Disability Insurance Scheme, the coming into force of the Convention on the Rights of Persons with Disabilities, Australia's anticipated ratification of the Optional Protocol to the Convention Against Torture and recent calls by Disability People's Organisations and academics for a Royal Commission into violence against people with disability.
2018) A disability aware approach to torture prevention? Australian OPCAT ratification and improv... more 2018) A disability aware approach to torture prevention? Australian OPCAT ratification and improved protections for people with disability, Australian Journal of Human Rights, 24:1, 70-96,
This article seeks to enhance criminology's understanding of the disability group home as a targe... more This article seeks to enhance criminology's understanding of the disability group home as a targeted site for confining and regulating disabled bodies. In particular, it seeks to extend criminology's burgeoning understanding of the archipelago of confinement and control, and build upon others' observations that within this archipelago, the penal has become mobile through site, and the carceral mobile through (disabled) body. The article shows how group homes serve a dual purpose and are marked by an uneven, bifurcated practice. For the vast majority of residents, group homes share little in common with other sites of confinement, but for a select few they can become multi-layered sites of confinement and control, containing people first through the site of the group home itself, and then through the site of the person's disabled body (with all that the designation of disability permits under law). Data supporting the analysis are drawn from the Australian state of Victoria and includes both government documents, as well as transcripts from interviews with 12 stakeholders who provide services and support to people with disability residing within group homes.
Griffith Law Review
In the wake of deinstitutionalisation, a range of punitive, restrictive and coercive measures fo... more In the wake of deinstitutionalisation, a range of punitive, restrictive and coercive measures for controlling the lives of people with intellectual disabilities have emerged from criminal law. This article critically engages with one of these measures, the Australian state of Victoria’s, supervised treatment order STO) regime. Drawing on STO decisions, this article argues that, during STO tribunal hearings, the margins of criminal and civil law converge, and the margins of law and medicine further conflate such that the medical diagnosis of a person’s intellectual disability becomes a legal ‘diagnosis’ of that person’s innate and ongoing risk and danger to society. That is to say, during STO tribunal hearings, the characteristics and features which typically contribute to medical diagnoses of intellectual disability become the characteristics and features which are now used to ‘diagnose’ the presence of risk and dangerousness in legal subjects. The article explores the implications of these converging diagnoses for our understanding of people with intellectual disabilities’ engagement with civil and criminal justice systems, the fluid nature of medico-legal boundaries, and the shifting nature of civil and criminal institutional controls over time.
In the last decade, criminology has begun to raise concerns about people with disabilities’ probl... more In the last decade, criminology has begun to raise concerns about people with disabilities’ problematic relationship with criminal justice systems. Yet we have ignored their problematic relationship with civil justice systems; a relationship which has seen people with disabilities subject to a range of punitive civil controls in the wake of their deinstitutionalisation. This article draws attention to one such punitive civil control, the Supervised Treatment Order regime in the Australian state of Victoria. Drawing on Foucault and his interlocutors’ work on ‘governmentality’, and engaging with Cohen’s concept of ‘magical legalisms’, the article reveals how this civil regime has become an effective mechanism for governing the lives of sex offenders with disabilities post their release from criminal justice systems. The article illuminates how this unusual function of the regime has not only been obscured from criminology’s view through claims of legislative intent, but further reconstituted as protective of people with disabilities’ human rights. The article concludes by discussing the implications of criminology’s absence from engaging with such punitive civil orders for people with disabilities and the wider penal field.
Advances in Criminology Series, Ashgate, 2013
Racialized Correctional Governance examines problems in the relationship between criminology and ... more Racialized Correctional Governance examines problems in the relationship between criminology and racialized issues. It questions current models for discussing issues of race in criminal justice systems and asks why a comprehensive theory of race and criminal justice has yet to develop in the discipline. It takes into account the full nature of problems facing racialized peoples in criminal justice systems, the developments and tensions in criminological theory and practice, as well as the scope of racialized criminal justice issues and where they occur.
Suggesting that current explanations for the over-representation of racialized peoples in the criminal justice system are inadequate, the book explores the mutual constructions of race and criminal justice. It examines the shortcomings of current discourse, giving an account of how race, criminal justice and criminology are interrelated.
Aiming to provide criminology with tools to engage with issues of race and criminal justice, the book develops and applies a set of rules to a series of case studies and proposes ideas for transforming institutional practice.
This discussion paper presents some of the key issues surrounding the use of restrictive interven... more This discussion paper presents some of the key issues surrounding the use of restrictive interventions for people with a cognitive impairment or mental illness. The paper provides the legislative context for the use of restrictive interventions in Victoria, reviews the factors associated with their use and raises three key areas for reform.
Canadian Journal of Law and Society, 2011
C3 2009 : Proceedings of 2009 Australian and New Zealand Critical Criminology Conference, 2009
The over‐representation and increased growth of Indigenous offenders in all Western criminal just... more The over‐representation and increased growth of Indigenous offenders in all Western criminal justice systems is longstanding and undeniable. In 2006 Victoria’s Koori offenders were 12 times more likely to be sentenced to a custodial or community sanction than non‐Koori people. Similarly, in New Zealand, Maori men account for 50 percent of the prison population but only 12.5 percent of the general population. Yet, it was not until the 1990s that the issues of Indigenous over‐representation or expanding Indigenous offender populations began to be presented as a problem within the correctional literature. This paper will explore the parameters of these ‘problems’, and present the following three arguments: (1) the issues of over‐representation was constructed within the correctional literature as a symptom of the different nature of Indigenous offending; (2) the different nature of Indigenous offending was in turn constructed as a problem of race; and (3) this construction of Indigenous offending is consistent with the contemporary constitution of mainstream offending behaviour. In concluding, this paper will discuss the implications of the emergence and sustained production of this figure of the Indigenous offender in relation to the capacity of criminologists to reconceptualise Indigenous offending.
Flinders Journal of Law Reform, vol. 10, no. 3, 2007/8, pp. 640-662. , 2008
Offender rehabilitation has developed a stronghold on correctional practice in the past two decad... more Offender rehabilitation has developed a stronghold on correctional practice in the past two decades. Further strengthening this grip have been three main principles for effective practice; risk, needs and responsivity. This paper will focus on the responsivity principle, which dictates that effective rehabilitation involves consideration of an offender's cognitive behavioural characteristics and appropriate program delivery. In particular, this paper will analyse how this task has been approached by the Victorian Department of Justice in relation to Indigenous offenders. Drawing on recent interviews with Justice staff, it will be shown that Justice's approach to being responsive to the needs of Victorian Indigenous offenders is more complex than addressing cognitive behavioural characteristics and program delivery. It involves meaningful interactions that extend beyond the Department of Justice and Indigenous offenders to include Indigenous communities.
Passages : law, aesthetics, politics : Proceedings of the 2006 Law and Literature Association of Australia conference, 2006
Theoretical paternalism and the convenience of working within ‘accepted’ frameworks have appropri... more Theoretical paternalism and the convenience of working within ‘accepted’ frameworks have appropriated the Indigenous subject within the boundaries of colonial relations. The establishment of post-colonial theory as one of the only ‘acceptable’ frameworks for exploring the Indigenous subject has limited the subject’s theoretical development within the binary of coloniser/colonised. Breaking from this tradition, the Foucauldian concepts of governmentality, ethics and care-ofthe-self will be used as a template for expansion. This paper will explore the passages of the Indigenous subject in theoretical development. It will examine the significance of post-colonial and settler colonial theories in the conceptualisation of the subject, and consider the transformations that occur when the borders established by these theories are crossed. The paper will therefore be comprised of four sections. The first will address the value and limitations of post-colonial and settler colonial theory. The second will posit reasons and implications for why theoretical neglect has occurred. The third will present and critique the Foucauldian concepts of governmentality, ethics and care-of-the-self. Applying Foucault’s concepts to examples of Indigenous offenders in the settler societies of Australia and New Zealand, the final section will examine the impact of the Indigenous subject in Western thought and institutional practice.
Enter Text, vol. 6, no. 3, Winter, pp. 341-361., 2006
Zealand Indigenous offender and their correctional agencies, a space for the Indigenous offender ... more Zealand Indigenous offender and their correctional agencies, a space for the Indigenous offender beyond traditional boundaries will be evidenced. Finally, moving away from a focus on external frameworks of interpretation, the agency of the individual will be considered, and a new way of conceptualising the space of the Indigenous offender will be provided.
Law Reform Submissions by Claire Spivakovsky
This is a submission responding to the new Australian National Disability Insurance Scheme Code o... more This is a submission responding to the new Australian National Disability Insurance Scheme Code of Conduct Discussion Paper. Prompted by our academic and advocacy engagement with disability institutional violence issues, our main recommendation is that the Draft National Disability Insurance Scheme Code of Conduct must engage with issues pertaining to the administration and use of restrictive practices, and explicitly address the potential of restrictive practices to be abused by NDIS disability service providers, with the ultimate aim of eliminating the use of restrictive practices.
Book Reviews by Claire Spivakovsky
Review of "Disability incarcerated" by Claire Spivakovsky
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Papers by Claire Spivakovsky
Suggesting that current explanations for the over-representation of racialized peoples in the criminal justice system are inadequate, the book explores the mutual constructions of race and criminal justice. It examines the shortcomings of current discourse, giving an account of how race, criminal justice and criminology are interrelated.
Aiming to provide criminology with tools to engage with issues of race and criminal justice, the book develops and applies a set of rules to a series of case studies and proposes ideas for transforming institutional practice.
Law Reform Submissions by Claire Spivakovsky
Book Reviews by Claire Spivakovsky
Suggesting that current explanations for the over-representation of racialized peoples in the criminal justice system are inadequate, the book explores the mutual constructions of race and criminal justice. It examines the shortcomings of current discourse, giving an account of how race, criminal justice and criminology are interrelated.
Aiming to provide criminology with tools to engage with issues of race and criminal justice, the book develops and applies a set of rules to a series of case studies and proposes ideas for transforming institutional practice.