30 January 2010

Different beats

Among this weekend's reading (ie skiving off with post-The Road distress) -

Raphael Cohen-Almagor's short, lucid article 'Holocaust Denial Is A Form of Hate Speech', 2(1) Amsterdam Law Forum (2010), 33-42.

Katherine Biber & Derek Dalton's article on 'Making Art from Evidence: Secret Sex and Police Surveillance in the Tearoom', 5(3) Crime Media Culture (2009), 243-267 - questions about artistic recycling of videos from covert surveillance of beats. For another perspective on homocriminality see Dalton's 'Policing Outlawed Desire: Homocriminality in Beat Spaces in Australia’, 19(1) Law &Critique (2007) 375–405 and 'Gay Male Resistance in Beat Spaces in Australia: A Study of "Outlaw" Desire', 28 Australian Feminist Law Journal (2008), 97–119 and Johnson's 'Ordinary Folk and Cottaging: Law, Morality and Public Sex', 34(4) Journal of Law & Society (2007), 520–543.

Common sense about clickocracy in Courtney Martin's article 'The Missing Discomfort in Mourning for Haiti (There is a hidden cost to tweeting, texting, and other "convenient" ways of taking action to help others)', American Prospect (2010). There's a similarly robust response by Fraser Speirs, in post, to some of the more arrogant criticisms of the iPad.

Marilyn Friedman's provocative Autonomy, Gender, Politics (Oxford: Oxford Uni Press 2003) and

Jennifer Hill's 51 page article 'Subverting Shareholder Rights: Lessons from News Corp.'s Migration to Delaware' in (2010) 63 Vanderbilt Law Review  101-150 -
The aim of this Article has been to reconsider, through a detailed case study of News Corp.'s migration from Australia to Delaware, an embedded assumption in much contemporary corporate governance scholarship that a unified common law corporate governance model exists. The News Corp. reincorporation saga highlights a number of important differences between U.S. and Australian corporate law rules relating to shareholder rights and provides a valuable counterpoint to convergence theory, which often assumes that a homogeneous shareholder protection regime exists within the common law world.

The News Corp. reincorporation case study is also relevant to the ongoing shareholder empowerment debate. It tests claims about the evolutionary nature of the current U.S. system of corporate governance that are often inherent in antishareholder empowerment arguments. It also demonstrates the importance of focusing on specific legal rules, rather than broad generalizations, in comparative corporate governance scholarship. The net result of News Corp.'s move from Australia to Delaware was an appreciable reduction in shareholder rights and an enhancement of managerial powers, including the power to implement poison pills — a power unavailable in Australia. Although News Corp. asserted that legitimate commercial goals prompted its original reincorporation proposal, the alacrity with which the company adopted a poison pill upon arrival in Delaware strongly suggests that gaining access to Delaware's pro-managerial governance regime was an important aspect of the reincorporation decision.
Margaret Gilbert's A Theory of Political Obligation: Membership, Commitment and the Bonds of Society (Oxford: Oxford Uni Press 2006)

28 January 2010

Families, fear and frustration

The national Attorney-General has released reports on operation of the family law system and how the family law courts - primarily the Family Court - deal with cases involving family violence.

The 405 page Evaluation of the 2006 Family Law Reforms [PDF] by Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand & Lixia Qu of the Australian Institute of Family Studies (AIFS) considers the impact of changes such as -
* introducing a presumption of shared parental responsibility into the Family Law Act 1975 (Cth);

* requiring separating parents to attend family dispute resolution before going to court, with some limited exceptions, including where there were issues relating to family violence; and

* establishing Family Relationship Centres to provide information, advice and assistance to families with relationship difficulties.
The separate 275 page Family Courts Violence Review [PDF] by Professor Richard Chisholm AM for the Family Law Council (a statutory authority, established under section 115 of the Family Law Act 1975 (Cth), with advisory responsibilities) consider the effectiveness of legislation and court practices in cases involving domestic violence.

The Chisholm report complements the Family Violence report [PDF] regarding "Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues".

The Attorney-General commented that -
The reports provide a comprehensive and objective analysis of the family law system against the aim of providing fair and sustainable solutions for families, while ensuring the safety and wellbeing of children.
The AIFS evaluation notes that the principle of 'shared parental responsibility' is widely supported, although often misconstrued as requiring equal shared care time. That misconception, according to AIFS, has led to unrealistic expectations among some parents and third parties such as grandparents.

The AIFS evaluation reports that the majority of parents in shared care arrangements believed those arrangements were working well but unsurprisingly there were concerns where there was an ongoing fear of domestic violence. The AIFS Director commented that -
for a substantial proportion of separated parents, there is evidence of significant family dysfunction: violence issues, safety concerns, mental health and substance misuse.

And for children whose parents have concerns about the safety of their child or themselves from ongoing contact with the other parent, shared care-time arrangements exacerbate the negative impacts on children.

The evaluation provides clear evidence that while there have been some positive developments, the family law system has some way to go in effectively responding to family violence and child abuse, mental health and substance misuse.

Where there were safety concerns reported by parents, these were linked to poorer outcomes for their children in all types of care relationships, but for those in shared care time, it was even worse. This is a small but extremely significant minority.
The reports note a shift away from use of the family law courts, with more separated parents using family dispute resolution services. A consequence is that fewer disputes are being resolved through litigation.

The reports highlight issues relating to screening and handling family violence, including statutory provisions that potentially deter the disclosure of allegations.

Chisholm comments that -
More than half the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent, and violence issues often go together with other problems, for example those associated with substance abuse and mental ill-health. Violence is bad for everyone, and particularly dangerous for children, whether or not it is directed specifically at them.

These cases present the courts with truly daunting tasks: to provide a setting in which the parties feel safe and confident that they will be treated with respect; to deal with the cases with necessary efficiency but most importantly with justice and fairness; and to ensure as far as possible that arrangements made for children, whether as a result of the parties' consent or by the court's adjudication, are suitable for their needs, which will include being safe and having both parents contribute to their developmental needs.
Among more specific comments Chisholm discusses concerns regarding -
a process introduced by the 2006 amendments whereby the court has particular duties to examine cases when a particular document is filed – the Notice of Abuse or Family Violence. Under the Rules of court, parties are obliged to file such a notice where allegations of violence or abuse have been made. Experience has shown that this system is not working. ... because of this, and because issues of family violence and other risks factors are so common in parenting cases brought to the courts, it would be better to have a system of risk identification and assessment that applies to all parenting cases. This approach would reflect the best available thinking about these issues, and would reinforce a lot of measures that are already being taken by the courts to identify and deal with issues of violence as early as possible.
Changes to the Act are also suggested. In particular -
three particular provisions need to be amended in a way that respects their original purposes but avoids the risk that they might deter victims of violence from making appropriate disclosures. They are the 'friendly parent' provision, the provision directing family advisers on what information to provide, and a provision for the making of costs orders where there are knowingly false allegations or statements.
In essence, the recommendations are that the 'friendly parent' provision should be amended so it recognises that parents sometimes need to take action to protect children from risk; that the specific and separate costs provision (s 117AB) dealing with knowingly false allegations and statements should be replaced by a simple reference to the giving of knowingly false evidence in the provision that deals with costs (s 117); and that the information that advisers are required to provide should reflect not only the importance of parental involvement but also the importance of safety for children.
The Attorney-General offered the standard answer -
The Government is committed to improving the family law system so that separated families can effectively access the help they need and disputes can be resolved in the best interests of children.

The Government will carefully consider the findings and recommendations of these reports, as well as other associated research, before outlining its response in due course.
The release of the reports coincides with promotion of the Victoria Police Living free from violence: upholding the right (strategy to reduce violence against women and children 2009-2014) document, promoted as something that -
demonstrates a public commitment by the police to improve their response to victims of family violence, sexual assault and child abuse. This includes a more effective response to perpetrators with decisive action and best practice investigative techniques that will ensure improved outcomes at court for victims.
I'm obviously having a bad bad day: while I appreciate the value of symbols I'd hope that we could take the commitment as given and instead concentrate on both exemplary intervention and prosecution, for example a more positive stance regarding the indulgent treatment of corporate and sporting heroes who seem to recurrently mistake their intimates for punching bags, and a recognition of the subtleties highlighted by Marilyn Friedman in Autonomy, Gender, Politics (Oxford: Oxford University Press 2003), 140-162.

The strategy is a nice expression of 1990s bureaucratism: lots of objectives (complete with pastel dots that one contact cruelly describes as "so so 1992"), values, performance indicators and corporate speak (rigidities, structural inequalities, violence-supportive attitudes, strategic, alignment, societal structures ...). Corporate flummery doesn't matter if support for any victim of violence improves and if the state government eschews policy by media release in favour of substantive performance. A challenge facing all levels of the Victoria Police (and associated agencies) is turn the words into something meaningful, rather than a suite of mantras and tick-boxes.

The strategy reflects the whole of government A Right to Respect: Victoria’s Plan to Prevent Violence against Women 2010–2020 document [PDF]. That plan has a ten year range. It "sets out short, medium and long term measures to reduce levels of violence against women by challenging its underlying causes". The expectation is that A Right to Respect -
will influence social norms, promote community leadership and embed a much stronger culture of equal and respectful relationships between men and women.

27 January 2010

Are Women Human

Catherine MacKinnon famously asked "are women human" in the eyes of the law and society. In Saudi Arabia, judging by reports from Human Rights Watch, the answer seems to be that women are human ... but children. Don't let them out without a minder and don't, don't let them out of the country without dear papa's permission, even if the girl-child is over 21.

The treatment of Nazia Quazi - a 21 year old person with Canadian/Indian dual nationality - illustrates the ways that law constructs identities, questions about jurisdiction and the problematical commitment of Saudi Arabia to implementing human rights agreements.

Ms Quazi reportedly entered Saudi Arabia in 2007 with her parents. She gained access to the land of sand, sun, oil and judicial rigour (nothing like a public stoning, beheading, lashing or amputation of a limb to liven up the day) using a visitor's visa. Nothing particularly unusual there: lots of countries, including Australia, manage access with a visa system.

In Saudi Arabia foreign visitors need a local sponsor. Unfortunately for Ms Quazi, her sponsor was her dad, who is also her mahram (guardian), the male relative who in Saudi law controls nearly every moment of a woman's life. While all unhappy families are the same, with apologies to Mr Tolstoy (whose yearning for purity and problematical performance might have fitted in with contemporary Wahabism), the Quazis were special. Dad is reported to have clandestinely switched Ms Quazi's temporary visitor's visa to a more permanent visa, one requiring him, as her sponsor, approve her exit. He has apparently refused to provide the approval, on the basis that he disapproves of her boyfriend. But wait, there's more, as they say on commercial television.

Ms Quazi has reportedly indicated that dad confiscated her passports (in both the Indian and Canadian flavour), along with her identity documents such as a health card and driver's license. That removal of identity - who are you if you lack the necessary paperwork - resonates with the legal status on women in Saudi Arabia. They aren't slaves (chattels that can be readily traded). However, in terms of law they are children, as noted in a 2008 HRW report. They lack autonomy. Many appear to be treated with the same contempt or non-recognition apparent in dealings with Asian guestworkers highlighted in another 2008 HRW report.

Despite indications to the contrary by the Saudi government, the mahram regime means that women need the mahram's permission to marry, rent an apartment, go to school, travel overseas, open a bank account or hold a job. So much for format ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) - assigning all women the status of a child is a fundamental form of discrimination.

Disappearance of a passport and other paperwork always poses problems for embassies. That is understandable; few people would want a government representative to blithely hand over a passport simply on the basis of an applicant's promise not to tell fibs.

In the Quazi case it appears that the Canadian embassy, albeit after some prompting by NGOs and media in Canada and the US, has agreed to provide a replacement passport. To get out of Saudi Arabia Ms Quazi still needs an exit visa, ie authorisation by the Saudi government rather than by the Canadians. The latter, aware of the Westphalian principle, have been reluctant to monster the Saudis to provide the visa. The Indian government appears to be treating the matter as an family dispute, something to be solved by the disputants and under local law.

HRW indicates that when Ms Quazi approached the Saudi Human Rights Commission she was reportedly told "your father is doing all this for your own security, just respect that". Respect for the guardian is one thing, confinement is another.

The report follows on disagreement about whether a fractious female student (variously reported as 13 or 20) has been sentenced to 60 lashes after a scuffle with a teacher over possession of a mobile phone and accounts of a 75 year old woman being sentenced to 40 lashes (plus a prison sentence then deportation), consistent with the case report 'Recent Cases: General Court of Qatif Sentences Gang-Rape Victim to Prison and Lashings for Violating Illegal Mingling Law' in 121 Harvard Law Review (2008) 2254-2261.

It has been claimed - for example by Sam Souryal in 'The Religionization of a Society: The Continuing Application of Shariah Law in Saudi Arabia', 26(4) Journal for the Scientific Study of Religion (1987), 429-449 - that strict adherence to traditional law (much of which, arguably, wasn't in use within the major centres of Saudi Arabia prior to the 1920s) is associated with lower crime rates relative to other countries. We might ask whether abuses offset the benefits of less crime'. Aharon Layish in 'Saudi Arabian Legal Reform as a Mechanism to Moderate Wahhābī Doctrine', 107(2) Journal of the American Oriental Society (1987), 279-292 is arguably over-optimistic about the shape of law reform.

26 January 2010

Indian FOI and Italian Biopolitics

SSRN has released 'A Great and Revolutionary Law? The First Four Years of India’s Right to Information Act', a 30 page paper by Alasdair Roberts. It offers a perspective on current Freedom of Information (FOI) developments in Australia and the UK.

Roberts notes that -
India's Right to Information Act (RTIA), adopted in 2005, is among dozens of national laws recently adopted that are modeled on the United States' Freedom of Information Act. A large number of studies completed in 2007-2009 have examined challenges in implementing the law. Indian citizens filed about two million requests for information under the RTIA in its first two and half years. However, use of the law has been constrained by uneven public awareness, poor planning by public authorities, and bureaucratic indifference or hostility. Requirements for proactive disclosure of information are often ignored, and mechanisms for enforcing the new law are strained by a growing number of complaints and appeals.
Roberts goes on to comment that -
Nonetheless, RTIA advocates have demonstrated the transformative potential of the new law, and continue to press energetically for proper implementation. Public authorities and civil society organizations have developed innovations in practice that may be useful to other developing countries adopting similar laws.
Meanwhile I've been looking at The Italian Difference: Between Nihilism and Biopolitics (Prahran: re.press 2009), a collection edited by Lorenzo Chiesa and Alberto Toscano. It is promoted as bringing together -
essays by different generations of Italian thinkers which address, whether in affirmative, problematizing or genealogical registers, the entanglement of philosophical speculation and political proposition within recent Italian thought. Nihilism and biopolitics, two concepts that have played a very prominent role in theoretical discussions in Italy, serve as the thematic foci around which the collection orbits, as it seeks to define the historical and geographical particularity of these notions as well their continuing impact on an international debate. The volume also covers the debate around ‘weak thought’ (pensiero debole), the feminist thinking of sexual difference, the re-emergence of political anthropology and the question of communism. The contributors provide contrasting narratives of the development of post-war Italian thought and trace paths out of the theoretical and political impasses of the present — against what Negri, in the text from which the volume takes its name, calls 'the Italian desert'.
Definitely not the Italian dessert! It will presumably appeal to some cultural studies postgrads and the occasional legal academic, especially the sort for whom no article is complete unless decorated with terms such as jouissance and decussation. Overall it strikes me as true believers squabbling with other true believers about the 'liberating' effects of nihilism nd generating treats such as -
In passing, we could note that the theme of a biopolitics of exception,dear to Agamben, is here so grossly embodied that its Heideggerian gravitas seems to implode. The Italian exception in the epoch of the alleged generalisation of the state of exception comes in the guise of a radical 'desacralisation' of the very figure of homo sacer. Here the spontaneous generation of mass-mediamatic biopolitical pseudo-concepts, such as the recently coined fine-vita (end of life) appears to be inextricable from the vulgar spectacularisation of the phenomena they attempt to describe.
A commitment to liberation might be better expressed through some Rawlsian kindness such as helping the occasional little old lady across the road, refraining from kicking the cat (bourgeois or otherwise) and providing pro bono legal aid instead of attending the Virilio seminar.

There's somewhat more bite in The Charmed Circle of Ideology: A Critique of Laclau and Mouffe, Butler and Zizek [PDF] by Geoff Boucher, also available from the unrepressed folk at re.press.

25 January 2010

Subalterns and Spirituality

After a day reading pomobabble about Homi Bhabha, Gayatri Chakravorty Spivak and Ranajit Guha - the latter apparently implying that only subalterns can speak about subalterns and subalterneity, Spivak (in 'Can The Subaltern Speak') adopting the position that although the subalterns can't speak she can speak for them - I've turned to Aboriginal Spirituality: Aboriginal Philosophy - The Basis of Aboriginal Social and Emotional Wellbeing [PDF] by Vicki Grieves.

It is a 78 page Discussion Paper (No. 9) for the Cooperative Research Centre for Aboriginal Health. The paper is glossed as -
Aboriginal Spirituality provides a philosophical baseline for Indigenous knowledges development in Australia. It is Aboriginal knowledges that build the capacity to enhance the social and emotional wellbeing for Aboriginal people now living within a colonial regime.
Spirituality [upper case S] is -
a feeling, with a base in connectedness to the past, ancestors, and the values that they represent, for example, respect for elders, a moral/ethical path. It is about being in an Aboriginal cultural space, experiencing community and connectedness with land and nature including proper nutrition and shelter. Feeling good about oneself, proud of being an Aboriginal person. It is a state of being that includes knowledge, calmness, acceptance and tolerance, balance and focus, inner strength, cleansing and inner peace, feeling whole, an understanding of cultural roots and 'deep wellbeing'.
That's a somewhat capacious description.

Grieves goes on to comment that
Aboriginal Spirituality derives from a philosophy that establishes the wholistic notion of the interconnectedness of the elements of the earth and the universe, animate and inanimate, whereby people, the plants and animals, landforms and celestial bodies are interrelated. These relations and the knowledge of how they are interconnected are expressed, and why it is important to keep all things in healthy interdependence is encoded, in sacred stories or myths. These creation stories describe the shaping and developing of the world as people know and experience it through the activities of powerful creator ancestors. These ancestors created order out of chaos, form out of formlessness, life out of lifelessness, and, as they did so, they established the ways in which all things should live in interconnectedness so as to maintain order and sustainability. The creation ancestors thus laid down not only the foundations of all life, but also what people had to do to maintain their part of this interdependence — the Law. The Law ensures that each person knows his or her connectedness and responsibilities for other people (their kin), for country (including watercourses, landforms, the species and the universe), and for their ongoing relationship with the ancestor spirits themselves.

24 January 2010

Pointers and governmentality

After the recent post on 'graffiti implements' (spraycans, marker pens and presumably stencils) it was interesting to see today's media release by the national Minister for Home Affairs (home as in 'not Foreign' rather than as in mortgage, whitegoods, pending property settlement).

Minister O'Connor warns that "people bringing laser pointers into Australia from overseas or ordering over the internet need to be aware that they risk breaking the law" and goes on to illustrate the point [bad pun] by reporting that around 6,000 laser pointers have been seized over the past six months by Customs & Border Protection.

The latter agency has issued a warning that bringing illegal laser pointers into Australia can result in a fine of up to $110,000. As far as I can determine no-one's yet been hit with the big one, which would presumably reflect illicit importation of commercial quantities of pointers rather than two of three in a pocket at Sydney airport or via a padded bag in the post from an overseas supplier.

5875 pointers were seized between July and December last year, up from 6518 in the 2008-09 financial year.

O’Connor went on to say that -
Anyone who brings in these devices without a permit will have wasted their money because their goods will be seized and destroyed. Individuals can also face prosecution.

It is essential that we raise awareness of the possible dangers laser pointers can pose to the community.
Under Customs regulations, hand-held laser pointers with an emission level greater than one milliwatt (1mW) are prohibited unless prior written permission has been granted.