AHRC and discrimination

The Australian Human Rights Commission has released its 67 page consultation report on Protection from discrimination on the basis of sexual orientation and sex and/or gender identity in Australia [PDF].

The consultation concerns how protection from discrimination on the basis of sexual orientation might be included in federal law. The report notes that -

Very few protections from discrimination on the basis of sexual orientation exist in federal law.

The Commission can inquire into and attempt to conciliate complaints of discrimination on the basis of 'sexual preference' in employment and occupation. However, if a complaint is not able to be resolved through conciliation, all the Commission is able to do is to issue a report to the federal Attorney-General which is tabled in Parliament. There is no avenue to seek a tribunal or court hearing about discrimination of this kind. Commission recommendations are not enforceable.

Since the 1990s, federal industrial law has included limited protection from discrimination in employment on the basis of 'sexual preference'. The Fair Work Act 2009 (Cth) now prohibits discrimination on the basis of an employee's 'sexual preference' in relation to all aspects of employment, from hiring, to promotion and training opportunities, and to dismissal. The Fair Work Act also refers to discrimination on the basis of 'marital status' rather than using 'relationship status’ which would include people in same-sex relationships.

The Sex Discrimination Act 1984 (Cth) prohibits discrimination on the basis of 'sex'. Arguments that discrimination against lesbians and gay men on the basis of sexual orientation is a form of sex discrimination under the Sex Discrimination Act have been explicitly rejected by Australian tribunals and courts.

The Sex Discrimination Act also prohibits discrimination on the basis of 'marital status', however this does not cover same-sex relationships. The Commission has recommended that this ground of discrimination should include same-sex relationships. A Senate inquiry report has also recommended that the term 'marital status' be replaced with 'marital or relationship status' which would include people in same-sex relationships.

It goes on to comment that -

Equality for people of all sexual orientations and sex/and or gender identities is supported by international human rights agreements which Australia has agreed to observe. Taking steps to achieve such equality is the responsibility of the federal government. For this reason, the Commission is particularly pleased by the Government's commitment to introduce federal protections from discrimination on the basis of sexual orientation and sex and/or gender identity. ...

There are significant gaps in the legal protection from discrimination on the basis of sexual orientation and sex and/or gender identity at the state and territory level and almost no protections at the federal level. This consultation has clearly demonstrated the need for comprehensive protections. The stories of discrimination, vilification and harassment, and the explanations of the potential benefits of new protections from discrimination, were compelling.

The belief that federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity would lead to cultural change was a common theme of contributions to the consultation. The consultation heard widespread support for the inclusion of protection from discrimination on the basis of sexual orientation in federal anti-discrimination laws. The consultation also heard of the importance of ensuring that people of all sex and/or gender identities are protected from discrimination by the use of broad and inclusive terminology in federal anti-discrimination law. State and territory laws provide incomplete and inconsistent protection from discrimination in this area. A number of consultation participants expressed support for including protection on the basis of sex characteristics, gender identity and gender expression in order to achieve the broadest coverage of people of all sex and/or gender identities. The Commission also heard of the need to ensure that people who are intersex are expressly included in legislative protections from discrimination.

The consultation also heard of alarming levels of violence and harassment, particularly towards trans and intersex people. The Commission encourages the Government to give consideration to providing appropriate protections from vilification and harassment on the basis of sexual orientation and sex and/or gender identity in federal anti-discrimination law.

The Commission acknowledges that a small number of participants did not support the inclusion of protection from discrimination on the basis of sexual orientation and sex and/or gender identity in federal law. Some participants argued that there should be exemptions to laws prohibiting discrimination on these bases, particularly for religious organisations. Determining the extent of any exemptions must involve careful balancing of the right to be free from discrimination with the right to freedom of religion and belief. The Commission's view is that there should be further consultation and careful consideration of this issue.

Federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity would send a powerful message to our community regarding equality. The Commission supports the introduction of such laws, which could have a profound impact on reducing discrimination, vilification and harassment experienced by LGBTI people in Australia.

Recurrent (and often rather plaintive) reporting on human rights abuses makes me nostalgic for the bravery of Lionel Murphy, who was prepared to empower the Australian Law Reform Commission and to initiate legislative change that we now accept as both valuable and overdue.

Manga

Noted the provocative 'Lolicon: The Reality of 'Virtual Child Pornography' in Japan' [PDF] by Patrick Galbraith in 12(1) Image & Narrative (2011) 83-119.

Galbraith argues that -

As its popular culture rapidly disseminates around the world, there is increasing pressure on Japan to meet global standards for regulating child pornography, and certain types of purely fictional images have been implicated. One of the keywords is lolicon (or rorikon), used to describe manga, anime and games that feature "underage" characters in sexual and sometimes violent situations. This paper examines the large and long-standing community of fans (among those referred to as otaku) in Japan who produce and consume lolicon works to question the assumptions of media effects. In recent debates in Japan, proponents of new legislation, which was eventually adopted, argued that sexual and violent representations in manga and anime should be specially regulated because such content is "the same for whoever reads or watches and there is only one way to understand it". However, a review of lolicon culture suggests that messages and receptions are, and have always been, much more varied and complex. Even the relation between fiction and reality is not at all straightforward. Responding to the new legislation, Fujimoto Yukari comments that manga and anime are "not always about the representation of objects of desire that exist in reality, nor about compelling parties to realize their desires in reality". From a legal standpoint, no identifiable minor is involved in the production of lolicon and no physical harm is done. There is no evidence to support the claim that the existence of lolicon, or engagement with such content, encourages "cognitive distortions' or criminal acts. As Mark McLelland argues, criminalizing such material represents a form of "thought censorship" and a trend towards the "juridification of imagination". This potentially might shut down alternative spaces of imagination and communities negotiating or opposing dominant cultural meanings.

One response might be that Australian law traditionally - and in my view, on occasion appropriately - "juridifies" the imagination. Although we cannot prohibit thought we can as a society signal through restrictions on expression that that some acts are egregiously repugnant. That may involve shutting down some online or offline "alternative spaces of imagination and communities negotiating or opposing dominant cultural meanings".

Art and defamation

In Gant v The Age Company Ltd and Ors [2011] VSC 169 the Supreme Court of Victoria has made rulings on a defamation case that art trader Peter Gant brought against The Age, Wendy Whiteley and Stephen Nall regarding alleged imputations made against Gant in five articles, including imputations that Gant sold artworks that he knew to be fake.

The majority of the imputations were struck out and it was found that the cause of action in respect of the first article was statute barred under the Limitation of Actions Act 1958 (Vic) ss 5(1AAA) and 23B.

Genetic Privacy

Past posts in this blog have noted concerns regarding weakening of Australia's national privacy regime through the Public Interest Determinations 11 and 11A under the Privacy Act 1988 (Cth).

Those concerns were reflected in a submission to the Privacy Commissioner, an entity that apparently decided to place its trust in the National Health & Medical Research Council, and in a co-authored article - 'Relatively Speaking: Genetic Privacy and Public Interest Determinations 11 and 11A under the Privacy Act 1988 (Cth)' - in 7 Privacy Law Bulletin (2010) that highlighted substantive concerns regarding both principle and practice.

I was thus delighted to see 'Doctors breaching patient privacy: Orwell redux' by David J Handelsman, Leo A Turner & Ann J Conway in 194(8) Medical Journal of Australia (2011) 403-404. For me it is more persuasive than 'Alerting Genetic Relatives to a risk of serious inherited disease without a patient's consent', the editorial by Graeme Suthers, Elizabeth McCusker & Samantha Wake at 385-386 in the same journal.

Handelsman et al comment that -

The other legal assault on privacy is highlighted in a recent update of the National Health and Medical Research Council (NHMRC) guidelines on medical genetic testing. These guidelines endorse a recent amendment to Commonwealth privacy legislation that widens the legal exemption allowing disclosure of patients’ genetic information to others, even against a patient’s wishes. Rarely, the situation arises where a patient is unwilling to inform relatives of a genetic test result that, in a doctor’s opinion, should be disclosed. Such disclosure was previously only permitted to resolve an imminent danger to another person’s health. After the previous exemption for imminent medical danger created a precedent, a recent amendment has removed the requirement altogether. In effect, this now creates genetic testing without consent by proxy — a situation where the relative may be informed, against the patient’s wishes, of the patient’s genetic status without the relative soliciting the information and possibly without wishing to know.

The arbitrary nature of this new standard is illustrated by its vague boundaries — only a "serious threat to life, health or safety" extending to “third-degree relatives” is required to override the patient’s denial of consent. The NHMRC guidelines even encourage not disclosing that the original genetic testing occurred, piling dishonesty upon breach of faith. The widened loophole creates an elastic legal excuse for the well meaning (but impatient) to breach individuals' privacy. This disavowal of patient confidentiality at a doctor's sole discretion has the net effect of allowing one individual's subjective, value-laden judgement, triggered by any remote threat to health or welfare, to override a patient's refusal of consent. Inevitably, unintended perverse outcomes should be expected — bringing to mind the legal maxim "hard cases make bad law".

In practice, this loophole will encourage the taking of the lazy path of legal coercion rather than gradual persuasion and ultimate acceptance of a patient’s decision. If forced disclosure is really required, such a momentous breach of a patient’s expressed wishes in the absence of genuine life-threatening circumstances should require approval from an independent legal tribunal, a standard well established for surgery on children whose parents refuse consent, or for sterilisation operations or other major elective procedures for those unable to consent.

... these legislative assaults on privacy reflect the fashionable belief in genetic determinism prevailing over any ethical, moral and legal constraints of everyday life. But ditching the trusted confidentiality of medical information for doctors’ convenience or to satisfy lobby groups permits arbitrary and damaging intrusion on personal liberty — the price of which remains eternal vigilance.

Famous but smelly feet

'Couple to forge future of the British monarchy', one of the BBC's more fatuous items on yesterday's royal wedding indicated that "The House of Windsor, its power stripped away over the centuries, now survives on being noticed. It withers, if ignored". Oh dear, that sounds like 'famous for being famous', with the House of Windsor largely indistinguishable from celebrities such as David Beckham or Lindsay Lohan or the exhibitionists in the Big Brother House.

Having survived -

The corgis have been consumed at the afternoon reception, the crowds are beginning to diminish, and we are left with a fresh royal recruit - Her Royal Highness the Duchess of Cambridge

- corgis being of course canapes - I was reminded of the recent ODNB profile of Jane Myddelton, who is characterised simply as a "beauty" and is famous for being famous, albeit with smelly feet.

The date of birth of Myddelton (née Needham) is unknown. She was baptised in 1646 and died some time between 1692 and 1703. She was married at the age of fourteen, as his second wife, to a man some ten years older than herself, Charles Myddelton as his second wife.

According to the courtier and writer Anthony Hamilton's ironic pen-portrait, Mrs Myddelton's beauty soon attracted many admirers, but she had an air of 'indolent langour' which not everyone found appealing, and her efforts to appear brilliant succeeded only in putting her audience to sleep. His acerbic comments may owe something to the failure of his friend the comte de Gramont to seduce her. Gramont, who arrived in London in January 1663, instantly pursued Jane Myddelton, as did Richard Jones, Viscount Ranelagh. Gramont soon desisted, the French ambassador reporting in August 1663 that Mrs Myddelton had ordered him to stop as it was both useless and disagreeable. Colonel William Russell, son of the Hon. Edward Russell, and grandson of Francis, fourth earl of Bedford, sent her presents and owned her portrait but only one of the admirers mentioned by Hamilton certainly became her lover - Ralph Montagu, master of the horse to the duchess of York and then the queen. Mrs Myddelton was painted by Sir Peter Lely in the early 1660s as one of a series of portraits of beautiful women to hang in St James's Palace. The portrait indicates she was blonde, with the fashionably full face, heavy-lidded eyes, 'bee-stung' lips, and rounded figure of the Restoration.

Alas, there's a canker in every rose, or in every disagreeable memoirist. The ODNB records that -

In 1665 the diarist Samuel Pepys saw Jane twice: on 22 March at Gresham College, when he called her "a very great beauty I never knew or heard of before", and on 10 April in Hyde Park, where she was the only "beauty" he saw that day. ... On 3 October Pepys was troubled to hear that she was "noted for carrying about her body a continued soure base smell that is very offensive especially, if she be a little hot", a problem referred to in two later satires Colin (1679) and The Ladies March (1681):

Middleton, where'er she goes,
confirms the scandal of her toes.

... Rumours circulated that Jane was to be appointed a dresser to the queen but, Browne wrote, "the conditions have not yett a mutuall consent and I am told hir last indisposition hath a little impaired hir esclat". Nothing seems to have come of the negotiations. Pepys saw Mrs Myddelton on 5 February 1667 at the King's Theatre in Drury Lane, and on 23 June that year he wrote that a previous rumour he had heard, that Mrs Myddelton was now a mistress of the duke of York, was untrue. Robert, second earl of Sunderland, commissioned her picture from Lely in 1666, Lorenzo Magalotti visiting England in 1668 included her in his list of English beauties, and the following year the French ambassador reported that the king was pursuing her, but again she seems to have avoided becoming a royal mistress.

Virtuous, it seems, or merely descreet, as well as beautiful. Her younger sister Eleanor became the mistress of the king's son James, duke of Monmouth, about 1674 and had four children with him.

Mrs Myddelton became friendly with both the king's mistress, the duchess of Portsmouth, and her rival the duchess of Mazarin, in 1676. In the summer of that year the French ambassador, Courtin, reported that Mrs Myddelton was the most beautiful woman in the kingdom and that the aged poet and philosopher M. de Saint-Evremond had fallen hopelessly in love with her, but that Ralph Montagu, who had been her lover for a long time, had now fallen for the duchess of Mazarin. Courtin was greatly attracted to Mrs Myddelton, who he claimed was not only a great beauty but most amiable. It was, however, difficult to get near her as she was surrounded by admirers and, moreover, Courtin did not think she could be seduced by money, having once refused a significant present from Gramont. Courtin's praise was such that the French minister Louvois requested her portrait.

The profile comments that -

From a protestant Welsh gentry background and married young into a similar family, not wealthy and with nonconformist friends such as the Angleseys, Jane Myddelton's image as a 'beauty', which she no doubt cultivated, gave her an entree to court circles and gained her many male admirers, although she in fact seems to have been attracted to relatively few of them. "Illustre entre les belles" ("Illustrious among beauties"; Steinman, 60), "handsomely made, all white and golden" (Hamilton, 109), for her own and subsequent generations Jane Myddelton was the epitome of the Restoration beauty, never mentioned without the epithet "fair" or "beautiful". Such indeed was the exclusive interest in her looks that she seems almost wholly defined by them and the person remains rather less accessible than the famous image.

Contemporary sources refer unkindly to "the notorious Mrs Middleton" and to "the fair one's funky hose".

Every step you take ...

The NY Times reports on a 65 page report [PDF] by the National Employment Law Project, which suggests that around 65 million people in the US have some type of criminal record (for an arrest or a conviction) and highlights employment discrimination on the basis of that information.

Some ... have left their criminal pasts far behind. Others have been convicted of minor offenses, or of crimes that appear to have little relevance to the jobs they are seeking.

Employers once had to physically search court records to uncover the background of people they were considering hiring. But the Internet and the proliferation of screening companies that perform background checks have made digging into a job applicant’s history both easy and inexpensive for prospective employers.

The Times notes a 2010 survey [PPT] by the Society for Human Resources Management, with around 90% of companies surveyed - mostly large enterprises - indicating that they conducted criminal background checks on some or all job candidates. Many are reported to screen out anyone who has a hint of criminal activity (including people who were arrested but not convicted), disregarding government guidelines that demand employers take into account the severity of an offense, the length of time that has passed and its relevance to the job in question.

The Times comments that -

There is no federal law that prohibits discrimination against people with criminal records. But the Equal Employment Opportunity Commission has set guidelines on how employers can use such records. Because African-Americans, Hispanics and other minorities have higher rates of criminal convictions, a blanket policy that screens out anyone with a criminal history will discriminate against these groups, the commission says, and is unlawful under Title VII of the Civil Rights Act of 1964. ...

At least three lawsuits brought under the Fair Credit Reporting Act, which mandates that employers notify applicants rejected because of a consumer reporting agency’s criminal background check, have been settled for the plaintiffs.

Defendants in lawsuits over criminal background checks have included transportation companies, a charter school, screening companies, a global consulting firm and the Census Bureau.

In New York, where state law regarding background checks is stricter than federal policies, the state attorney general’s office has settled with Radio Shack, ChoicePoint and other companies after investigating them for violations.

Meanwhile the European Commission has release a 44 page Evaluation report on the Data Retention Directive (Directive 2006/24/EC) [PDF].

The report notes inconsistencies in national interpretation (or merely in implementing) the 2005 EU Data Retention Directive. More problematically, it comments that eight of the 19 member states that have implemented the Directive have disrespected its focus of providing data to combat "serious crime". The UK has not defined "serious crime". Law in France, Italy, Belgium, Denmark, Poland, Latvia, Slovakia and Slovenia permits use of retained data in investigation of all criminal offences.

One of the more perplexing memes in Australian IT literature is that European privacy law fundamentally hobbles effective law enforcement and that there are few requests for access under the Directive. The report is a useful reminder that is not so.

The Directive harmonises European law, requiring Member States to oblige providers of publicly available electronic communications services or of public communications networks to retain telecommunication traffic and location data for between six months and two years for the purpose of the investigation, detection and prosecution of serious crime.

An unused regime? The report notes that there were around 2.9 million access requests from 2008 to 2009 (equivalent to two requests for every European police officer a year or 11 requests for every 100 recorded crimes).

The Commission has floated the idea of a data retention hierarchy to ensure data is only accessed under the Directive in relation to serious criminal offences.

Deleuzional

From 'Giving Guilt: The Aneconomy of Law and Justice' by Andreas Philippopoulos-Mihalopoulos in 12(1) Distinktion: Scandinavian Journal of Social Theory (2011) 79-93 -

The concept of guilt is seen here as debt beyond repayment. Following Derrida, the gesture of giving is placed in the economy of gift, an aneconomical gift that is not part of the exchange cycle. At the same time, guilt is linked to desire, the desire to give and to be free from guilt. Desire is described as the urge to cross over, to apprehend the non-identical and to give oneself away. In this reinforced crossing, where the improbability of giving conditions the improbability of reaching out, guilt and its impetus are found locked up in claustrophobic self-reference. For this reason, the author consults Kierkegaard and Luhmann whose contributions show that the gesture of giving acquires its relevance not so much on account of its recipient, but precisely because of the absence of such a recipient. The combination of an absent recipient and an absented giver fills the gift with an emptiness that can only be channeled back upon itself, in the autopoietics of guilt. This is exactly the fate of the law, which can deal with the guilty but never with guilt (in the above sense). In its attempt to give away guilt, the law attempts to become other than itself: justice. The improbability of crossing over becomes more obvious than ever.

He comments that -

Giving performs a certain crossing. This occurs not just because giving traditionally entails a movement from the one who gives over to the one who receives. Not even because one usually wants to receive back or to bask in the recipient’s pleasure. Rather, the act of giving itself, the gesture per se, is a crossing. It is irrelevant what is given or to whom. The point of relevance is the crossing from self to other, from one side of a boundary to the other, from here to there: indeed, the gesture of giving as an intentional bridge between giver and receiver, namely, a bridge that connects while keeping apart. Just as Husserlian intentionality constitutes a disrupted connection between subject and object (Husserl 1973), in the same way guilt intentionally links while tears apart. Thus, on the one hand one finds the emptying of givenness, the absence of the given left behind. And on the other, the desire that is left unfulfilled, the unquenchable wish to cross onto the other side: these are the loci of the present text. ...

Although my reading of autopoiesis and Luhmann more specifically is idiosyncratic and purposefully distant from given interpretations (see, however, Clam 2007), I insist on the non-metaphorical conception of autopoietics of guilt. This means that guilt, just as communication, cannot be conceived outside its autopoiesis, namely, the self-generating and thus infinite stock of guilt that relentlessly moves (or attempts to move) across a boundary. This boundary (be it between individuals, organizations or systems) separates the location of guilt from its projected dislocation, namely, its eventual self-eradication. The paradox here is that guilt wants to exhaust itself, to disappear, and in so trying, it always produces itself in excess. Guilt is inexhaustible and so is the desire to cross.

In that sense, the present article contributes to what I have elsewhere called 'Critical Autopoiesis' (Philippopoulos-Mihalopoulos 2009), namely, the emerging understanding of autopoiesis that applies itself onto itself in critique and indeed in crisis. The crisis of autopoiesis is not just a theoretical crisis. Rather, it is a crisis of excess, of waste and putrefaction. In its normal operation, autopoiesis generates its own autopoietic excrement. This is both an expected state of the theory (any theory) as well as a much anticipated link between on the one hand, the theory, and on the other, a society that is consumed by guilt over its own overconsumption and overproduction. In that sense, guilt is a space of critique within society, a mnemonic mirror that cannot be alleviated by recourse to the traditional means of absolution, namely, god or law. Indeed, it is on the latter that this article partly focuses. The particular choice is justified on two fronts: first, law is considered to be dealing with guilt in an expiatory way for both the perpetrator and the victim. Indeed, this is what in some respects is called justice. And however rare an occurrence justice might be, it remains a more convincing manifestation of a working mechanism than divine justice. The second reason for the choice of focus is less valiant, but in some ways more imperative: god is much harder to focus on, herself a particularly intensely moving target whose absence might require an entirely different methodological avenue. Still, there is a lot of god in what follows, not least because the difference between law and justice on the one hand and god on the other might merely be a question of the material on which the text is written on – stone tablets, turtles, bodies, paper, screens.

And on and on.