Lose the grey hair

In his forward to The Elephant in the Room: Age Discrimination in Employment [PDF], a 28 page study by Sol Encel, Penelope Nelson & Maria Stafford for the National Seniors Productive Ageing Centre, Peter Matwijiw comments that -

There is no doubt that older workers make a massive contribution to Australia’s economy. An earlier report released by the National Seniors Productive Ageing Centre, Still Putting In, showed that older workers contributed $59.6 billion a year to our economy. Equally, the country loses an astounding $10.8 billion a year by not making use of the skills and experience of older Australians who want to work1. Which prompts the question – why are we overlooking these older workers?

This report explores that question, and the results are not pretty. It finds that age discrimination is widespread - in recruitment, in promotion, and during times of retrenchment. It is evident in workplace harassment and pressure to retire, and in the unspoken but powerful assumption that the best workers are young workers.

Age discrimination, although widespread, is "the elephant in the room" – palpable but unmentionable. Australia loses incalculable talent and energy through age discrimination. Paradoxically, while the federal government is encouraging people to stay in the workforce well past the once-mandatory retirement ages of 60 or 65, many older workers find themselves rejected. There is a painful gap between laws against age discrimination, and the practice of age discrimination.

The thrust of this report is that awareness of age discrimination law leads often to nimble side-stepping – compliance with the letter rather than the spirit of the law. Recruitment advertisements no longer mention age but resort to euphemisms. Where complaints of age discrimination have been made, in many cases complainants received only an apology. Very few people refused a job were subsequently offered that job, and compensatory payments were usually low.

The effect of discrimination on older workers is often devastating. The case studies and personal accounts reveal the harrowing experience of older workers who have felt the weight of age discrimination and rejection. The policy implications emphasise that age discrimination cannot be ignored, even if it has become less overt, and more efforts are needed to overcome it.

The authors conclude by highlighting three policy implications -

Policy implication 1: Policy makers should examine the issue of ‘disguised discrimination’ and strengthen the relevant anti-discrimination legislation to reduce the likelihood of covert discrimination. Broader community education and awareness about the value of older workers is needed.

Australia is a prosperous country with a long tradition of a fair go and a broad consensus about fair treatment at work. Social inclusion policies emphasise participation for all. As the case studies in this report show, age discrimination has severe consequences for families and individuals. Despite the abolition of mandatory retirement ages, ideas about a social norm of the right age to retire lead to pressure on many older workers.

Australians are leading longer, healthier lives and are being urged by economists and politicians to work longer. Many are keen to do so, while others feel that after a lifetime of hard work they are entitled to an easier life.

The notion of an expected or “normal” age of retirement remains strong and leads to pressure on some older workers, especially when redundancies or restructures take place. In the report, a 2007 ABS survey of 3.9 million workers aged 45 and over is quoted, showing that most respondents hoped not to retire until they were at least 65. This cohort of Australians envisages an active lifestyle in their sixties, with 24% intending to retire at 70 or over. In time, this generation may overcome the community attitudes that have put some of our informants under pressure to leave the workforce around the age of 60.

Policy implication 2: Policies must allow individuals to make their own work or retirement choices in the light of their own health, aspirations, financial status and family situations.

It is evident from this study that age discrimination is alive and well in this country, and that it has devastating impacts on its victims. Legislation and administrative remedies are both necessary, but they alleviate only some of the problems. While Australia’s anti-discrimination laws are to be applauded, the number of conciliated cases reported by the Australian Human Rights Commission and the NSW Anti-Discrimination Board remains modest. To many people, the complaint process with its emphasis on written documents, legal representation, and referral to a higher body where conciliation fails, appears time-consuming, and potentially costly in terms of prolonged effort, emotional distress, legal fees and loss of reputation.

Policy implication 3: There is a need for greater awareness by employees of their rights to complain about age discrimination, and perhaps more information or advice for unions, professional bodies and the like to feel more confident in supporting such complaints by their members.

A campaign launched by the Fair Work Ombudsman in November 2010 is a good start in this direction. New educative material has been prepared to increase awareness among the more than three million working Australians aged over 45 that unlawful discrimination can include refusing to employ, promote or train someone because they are considered too old, or repeatedly offering training and promotion opportunities and overtime and penalty shifts to young staff first. The Fair Work Ombudsman Executive Director Michael Campbell said that every employee, regardless of how old they are, has the right to work without fear of discrimination

It is to be hoped that this campaign, together with initiatives that encourage the training and retention of older workers, will ensure greater progress in the elimination of age discrimination and the promotion of fairness at work. Only then will the elephant in the room cease to be a threat.

Will the subaltern please shut up

From 'Theorizing Resistance in Spivak's Deconstructive-Marxist Postcolonial Criticism' [PDF] by Ding Zhaoguo in 2(1) Studies in Literature & Language (2011) 19-25 -

Resistance has been an important subject of debates in recent postcolonial studies. This paper discusses the problematic of resistance in Gayatri Spivak’s deconstructive-Marxist postcolonial writings by focusing on her critical concepts "the subaltern" and "strategic essentialism". It concludes that though her deconstructive-Marxist postcolonial criticism is suspicious of valorizing the constitutive effect of the colonial discourse on colonized subjectivities and debilitating their power of initiating resistance, Spivak's problematization of the colonized subjective agency in terms of imperial epistemic violence and its heterogeneity and the intellectual's positioning helps interrogate the notion of identity as independent and self-sufficient consciousness, thus exposing the danger of reproducing the imperial power structures and re-silencing the subaltern involved in the process of postcolonial textual re-writing.

If Bhabha continuously interrogates the nature of colonial discourse and relationship in terms of its ambivalence and hybridity, it is Gayatri Spivak’s works that persistently problematize the constitution of the colonized subjective agency from various angles. She endeavors to theorize the possibility of counter-knowledge of the subaltern, such as those constructed by colonizers or scholars of the Subaltern Studies group. In her frequently quoted essay 'Can the Subaltern Speak?' Spivak engages with the effect of the "epistemic violence" imposed by colonialist and imperialist discourses on the colonized native subjectivity and the complex issue of the denial of subjectivity to the native subaltern women in nationalist histories. She examines the pitfalls and aporias into which even the radical Subaltern Studies group may fall through a deconstructive problematization of the category of "the subaltern" and a further analysis of the subaltern women who are ignored even by the revisionist histories. Meaning as "a junior ranking officer in the British army" and "of inferior rank" (OED), the term subaltern is used by Gramsci to refer to those social groups subjected to the hegemony of the ruling classes in his 'Notes on Italian History' (1934-5). Gramsci uses this term to cover a great variety of people, including peasants, workers and other groups having no access to hegemonic power. Thus the history of the subaltern is necessarily fragmented and episodic because they are always subjected to the hegemony of the ruling classes even in their rebellion. It is obvious that the subaltern has less access to cultural capital and social institutions to produce their own representation. According to Gramsci, only a permanent revolution of class adjustment can break this pattern of subordination of the subaltern class (Prison Notebooks 52-54). This term was adopted in the Subaltern Studies collective “as a name for the general attribute of subordination in South Asian society whether this is expressed in terms of class, caste, age, gender and office or in any other way” (Guha vii). This group argues that, the problem with the historiography of Indian nationalism lies in the fact that it is dominated by both colonialist elitism and bourgeois-nationalist elitism. Therefore, it defines its goal as examining the subaltern "as an objective assessment of the role of the elite and as a critique of elitist interpretations of that role" (Guha vii).

Zhaogou goes on - nothing like sectaries smacking the teacher - to conclude that -

Compared with the conception of resistance strategy as principally based upon a relatively autonomous and coherent notion of ethnic or national identity in the early anti-colonial writings, Spivak’s problematization of the constitution of colonized subjective agency in terms of imperial epistemic violence and its heterogeneity and the intellectual’s subjective position of power and desire helps interrogate the notion of identity as independent and self-sufficient consciousness, exposing the danger of reproducing the imperial power structures and re-silencing the subaltern involved in the process of postcolonial textual re-writing. However, the implication of this theorization and problematization consequently overemphasize the constitutive effect of the colonial discourse on colonial subjects, going so far as to disable their agency to initiate and sustain anti-colonial resistance and fail to get out of the captivating concept of discourse and power to imagine alternatives for effective resistance.

That'll teach her, won't it!

Mosley and Notification

A ruling by the European Court of Human Rights (4th Chamber) in Case of Mosley v United Kingdom (Application no. 48009/08) has rejected Max Mosley's request for a legal pre-publication requirement

Mosley, Formula 1 racing executive and son of the late BritFascist Sir Oswald, took action in 2008 against The News of the World over its publication of articles and videos that revealed his private life, in particular the feature article of 30 March 2008 titled "F1 boss has sick Nazi orgy with 5 hookers - Son of Hitler-loving fascist in sex shame" and claiming - in true NotW style - "Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert". The print edition included still images taken from video footage secretly recorded by one of the participants in Mosley's spanking session; extracts of the video were made available online by the NotW. (The recording had been made using a camera - supplied by NotW - secreted in the brassiere of one of the car czar's companions.)

The Court notes that the video footage was viewed over 1.4 million times over 30 and 31 March 2008, with the online version of the article being visited over 400,000 times during the same period and the print version of the NotW having an average circulation of over three million copies.

In Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) Justice Eady of the UK High Court concluded that the articles and images breached Mosley’s right to privacy. Mosley was awarded £60,000 in damages (currently the highest UK award of damages in a misuse of privacy case) and £420,000 costs.

Mosley appealed to the European Court of Human Rights, arguing that the UK was required by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to protect his private life, with a positive obligation to impose a legal duty on the NotW to notify him prior to publication of information which intruded upon his private life. That notification would provide an opportunity to obtain an injunction.

The Fourth Section of the Court of Human Rights in rejecting Mosley's request for a legal pre-publication requirement emphasised the need to look beyond the particular facts and consider the broader impact of a pre-notification requirement.

It noted that the UK courts had found no Nazi element in Mr Mosley’s sexual activities and had therefore concluded that there had been no public interest in, and therefore justification for, the publication of the articles and images. In addition, the newspaper had not appealed against the judgment. The Court therefore considered that the publications in question had resulted in a flagrant and unjustified invasion of Mr Mosley’s private life.

However, given that Mosley had achieved a finding in his favour before the UK court, the Fourth Chamber’s assessment concerned the balance between the right to privacy and the right to freedom of expression in relation to the UK legal system.

Reflecting comment by media interests such as Index on Censorship, the Media Lawyers' Association and European Publishers' Council that prior notification was inconsistent with the right to freedom of expression under Article 10 and that prior notification did not reflect the practicalities of journalism the Court noted the limited scope under Article 10 for restrictions on the freedom of the press regarding matter of general public interest.

Given concerns regarding the chilling effect of a pre-notification requirement, doubts about the effectiveness of such requirement and the latitude given to individual EU governments the Court held that Article 8 does not require a legally binding pre-notification requirement. It noted that any pre-notification requirement would only be as strong as the sanctions imposed for failure to observe it: a standard civil penalty would be unlikely to deter publishers, with a stronger penalty potentially being incompatible with Article 10.

A media release for Mosley quotes him as -

I am disappointed at today’s judgment, because I think that there is widespread recognition that privacy is fundamental to the way we live our lives. The potential for intrusion into our privacy is enormous and we need proper protection.

My current intention is to continue with my application by way a request to the Grand Chamber and I will be discussing this with my lawyers over the next few days.

Under Articles 43 and 44 of the Convention the Fourth Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court (a five judge panel). If the Grand Chamber considers the case deserves further examination it will hear the case and deliver a final judgment, reflecting practice in Australia's Federal Court. If the referral request is refused, the Fourth Chamber judgment will become final on that day.

The Court noted that the UK Government considered Mosley was no longer a victim of a Convention violation given, in particular, that he had been compensated by the newspaper as ordered by the UK courts. Mosley insisted that he remained a victim of violation by the UK of his right to privacy, given that the damages awarded were unable to restore his privacy after millions of people in the world had seen the material. The Court found that no sum of money awarded after disclosure could be a remedy for his specific complaint that there was no legal requirement in the UK that obliged the media to give advance warning of a publication related to a person's private life. Mosley could thus claim to still be a victim of a Convention violation.

The UK Government claimed that Mosley had not exhausted domestic remedies before taking his complaint before the Court, in particular arguing that he had not appealed against the ruling by Eady J on exemplary damages, that Mosley could have pursued an account of profits claim as opposed to a claim for damagesand that he had failed to complain under the UK Data Protection Act about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data. Mosley considered the proposed remedies irrelevant to his complaint.

Poverty of Theory

From Richard Webster's 1983 piece 'E.P. Thompson and the Althusserian locusts: an exercise in practical criticism' -

As the various committee meetings of socialism have wandered in their discussions from practice to theory, from the concrete questions posed by the nature and circumstances of ordinary men and women to the metaphysical discussion of abstractions, Thompson has not hesitated to rise from his seat and, holding aloft the agenda-paper which has been neglected, to seize the chair from whichever self-appointed convenor has assumed it and recall the meeting to order. In The Poverty of Theory he does so again. Because he does not hesitate to hammer upon the table, because he speaks with thunder in his voice, nearly all those present have shown at least signs of attending to him

There can be no surer indicator of the weight and significance of Thompson’s voice within English Marxism than the appearance in 1980 of a book length study of Thompson's ideas and influence written by Perry Anderson. It was Anderson who, in the early 1960s so impressed the founders of the British New Left with his seeming intellectual fertility, his energy and his decisiveness that they, having reached in Thompson's words 'a point of personal, financial and organisational exhaustion' handed over editorial control of the New Left Review to him. This was in 1963. In the next few years those who had joined forces, sometimes at great personal cost, to construct the house of the New Left, woke up from their dream to find themselves outside the home which had once been theirs looking in on a new young occupant whose pride in ownership was tempered only by his evident distaste for the unfashionable and vulgar manner in which the house had been furnished by its original occupants. It was not long before those who stood outside their old home saw the first fleet of intercontinental removal lorries roll in. Swiftly and with very little fuss the old furniture was trundled out. That battered well-used sofa with its William Morris cover went out with it, earmarked for the dust-heap. The old kitchen chairs which were hewn from oak and worked crudely so that a little humanity had stuck to their rough forms, were now considered unusable. The old pictures were taken down from the walls and most of the books were stripped from the shelves, packed into tea-chests and loaded, along with the furniture, into the waiting container lorries. No sooner was the old furniture loaded up than was the new furniture carried proudly down the ramps of the same lorries. New steel and glass tables and chairs designed on the Bauhaus principle but purchased for the most part in Paris, were efficiently installed within the house – whose walls had already been replastered and painted in that uniform white beloved of the bourgeoisie. Only when the cantilever chair of mathematical catastrophe theory had been finally placed in position opposite the sofa of Althusserian structuralism and beneath the spotlight of Lacanian theory focussed by Juliet Mitchell did the new occupants begin to feel more secure and a little more at home. Unpacking their Habitat kitchen they started to cook meals which contained little goodness and less meat but which were deemed all the better for that.

Some few of those original occupants of the house who continued now and then to peer into its windows were impressed by what they saw. Withdrawing to their own establishments in provincial and university cities they quietly ordered furniture from the same suppliers and had it delivered to their door by men wearing the white overalls of the same inter-continental removal firm. Others were dismayed and retired to a distance. One in particular, however – and this was Thompson – returned to berate the new occupants. Although the charges he laid against them were arrogantly rebutted he refused to fall into the silence of deference or complicity. He returned again until eventually, in The Poverty of Theory, he produced a polemic of such power that it threatened to break apart even the newest and most gleaming pieces of intricately machined furniture contained within the usurped house of the New Left.

Barred votes

Australia's Federal Parliament has passed legislation to overturn a ban on prisoners voting and to increase the amount of time people have to enrol once an election is called.

The statute is the Electoral & Referendum Amendment (Enrolment & Prisoner Voting) Act 2010 (Cth). It reflects High Court decisions - Roach v Electoral Commissioner [2007] HCA 43 and Rowe v Electoral Commissioner [2010] HCA 46 The former overturned the Howard government's ban on prisoners voting. The latter addressed the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), finding that the electoral rolls cannot be closed on the day writs are issued.

Prisoners serving a sentence under three years will now be able to vote. People will have seven days to enrol after election writs are issued.

The ABC quotes Special Minister of State Gary Gray as indicating that the Government respects the Court's decisions -

The amendments moved in 2006 were both unfortunate and inconsistent with both the spirit and the good governance of our electoral codes - they should not have happened.

The High Court agreed with that and the Government and the Parliament have today spoken on that matter.

The amendment reflects discussion highlighted here.

He would say that, wouldn't he

Malaysia's High Commissioner in Australia, following yesterday's announcement of an in principle agreement about asylum seekers, has responded to criticism of his country's treatment of asylum seekers and refugees by saying that they are treated with respect and dignity. His statement is somewhat askance with past reports (eg that noted here) and we might ask why Malaysia has failed to sign up to several human rights agreements.

Dato' Salman Ahmad is reported as indicating that Malaysia has reasons for not signing the UN Convention on Refugees.

Those reasons were apparently not specified and there's been no indication that the national government will move forward in the post-Mahathir era. We might speculate that international agreements such as the International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) are inconsistent with Malaysia's bumiputra policy, restrictions on free speech, fondness for corporal punishment and provincial law criminalising apostasy.

The High Commissioner indicated that "This does not mean that we do not treat refugees with respect and dignity" (caning perhaps being one signifier of dignity) and offered reassurance. People transferred to Malaysia will "mingle" in the community while their claims are processed. "There is not going to be any centre so they are not going to be in detention".

I am more impressed by the comment from Amnesty International refugee coordinator Grahame Tom, who characterised the agreement as an "extraordinary" political over-reaction -

You know we really are talking about a minuscule amount of people, and yet to send them back to a country, which is not a signatory to the convention, where we know there are real problems with the treatment of refugees and asylum seekers is absolutely extraordinary

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.