Phantom POWs?

I've been working on a law journal article regarding what US commentators have characterised as 'stolen honour', ie people who have falsely claimed to have been awarded military decorations or more broadly be entitled to public esteem (and benefits such as service pensions) for exemplary activity as a member of the armed/police forces.

Those claims, similar to instances of 'survivor fraud' (psychologically disturbed or merely opportunistic people claiming to be survivors of the Titanic, the Lusitania, 9/11, the Victorian Bushfires, the Shoah or satanic rituals), are an inevitable feature of our society. Impostures by people who believed their own lies or who merely wanted others to believe them are discernable from at least the time of Imperial Rome.

An interesting aspect is the bizarre nature of some claims (eg a perpetrator claiming to have walked across wartime Europe while being fed by wolves) and what might seem to be egregious risk-taking on the part of some claimants (eg awarding yourself trivial honours is less likely to attract attention than decorating yourself with the Victoria Cross), an excess that arguably indicates psychological disturbance - or sheer howling stupidity - rather than a rational assessment of an easy way to cash in.

Australia's Charles Sturt University fired James Montgomery, who modestly claimed to have been awarded the Victoria Cross (somewhat rarer than a Nobel Prize) and to have served as a US Marine, a US Navy SEAL, an Australian SAS Captain, a SAS Major, a Commando and a RAN Reserve Captain. No, he wasn't employed as a lecturer in creative writing.

Another aspect is the delay in detection of some fraudsters and the failure of gatekeepers,including specialists used by some large corporations that face substantial reputational risk in appointing senior executives with bogus CVs. One example was CV embellishment by Jeff Papows of IBM, which provoked the UK Register to comment -

So he's not an orphan, his parents are alive and well. He wasn't a Marine Corps captain, he was a lieutenant. He didn't save a buddy by throwing a live grenade out of a trench. He didn't burst an eardrum when ejecting from a Phantom F4, which didn't crash, not killing his co-pilot. He's not a tae kwon do black belt, and he doesn't have a PhD from Pepperdine University.

I was thus interested to read in today's Melbourne Age that the Australian Federal Police are investigating an alleged fraud by 83 year old Arthur Rex Crane, federal president of the Prisoners of War Association of Australia. Crane has reportedly been on the highest level of service pension since 1988, received a substantial ex gratia payment and claimed to be one of Australia's youngest prisoners of war.

Crane reportedly alleged he was captured by the Japanese in 1942, became a prisoner of war at 15, was imprisoned in Singapore's Outram Road jail, had his hands nailed to a tree by his captors and had his head smashed by a soldier wielding a baseball bat. Alas, the Sydney Morning Herald reported that throughout the war the 83-year-old lived in Adelaide and had never served in the military. His supposedly dead brother is alive and well. When confronted by journalists, he reportedly responded "It is me living a lie, isn't it?"

A media release [PDF] from the federal Veterans Affairs Minister Alan Griffin describes the matter as disgusting -

Personally, I think for anyone to impersonate a prisoner of war is disgusting. It is a betrayal of all the values our veterans stand for. ... This matter should be pursued to the fullest extend of the law and I am confident that the AFP will do so. I eagerly await the outcome of that investigation."

Crane's alleged offence echoes deceptions such as those involving 'Major' Reg Newton, who rose to become junior vice-president of the 8th Division Association in Australia. Newton claimed a Military Cross and bar ("awarded MC for heavy action Laos"). He had supposedly been in service as a secret agent during the Cold War (setting up escape lines in East Germany in 1951), been wounded in Korea, almost killed in Mongolia and decorated by King George VI.

Unfortunately for him, after basking in the esteem of his fellows and being featured in newspaper articles, he was sprung in 2006. A NSW court heard that he was never a major, had never won a Military Cross and indeed never served overseas. The court was apparently unimpressed with reports that he explained discrepancies and the absence of documentation on the basis that his work was "top secret".

Public faces in eastern places

I'm reading Marc Nichanian's The Historiographic Perversion (Columbia Uni Press, 2009) on responses to the Armenian Genocide after scooting through Paul Bailey's Censoring Sexuality (Seagull Books 2007) and an article by Christos Zagkos, Argyris Kyridis, Ifigenia Vamvakidou and Nikos Fotopoulos on 'The Banknote as a Figure of Nationhood in the Balkan Countries' in 23(9) Applied Semiotics 5-27. The latter is similar to Dennis Altman's delicious Paper Ambassadors: The Politics of Stamps (Angus and Robertson 1991).

Bailey's book is a slim, elegant personal reflection on censorship - self-censorship, use of the death penalty in contemporary Iran, and otherwise - of homosexual activity and affection. It supplemented by a collection of extracts from literature and reports of repression, notably an account by a gay man in the kleptocracy known as Egypt and accounts of what it's like to be gay (or merely perceived as gay) in places contested by Fatah and Hamas.

Zagkos et al explain that

Money is the foundation of any national economy, but also the mark of national sovereignty, reflecting the state which issues it. Its symbolic role is one of its essential characteristics, and the name of the currency its salient feature. Policymakers recognize that currencies can act as important carriers of nationalist imagery, particularly if its supply is monopolized. Money would indeed seem a perfect locus on which a state can construct an ‘ordinary nationalism’ that is all the more powerful for being part of the seemingly unremarkable fabric of daily life. In this paper, using a semiotic methodology, we shall analyse the symbols of the state produced banknotes of Albania, Turkey, the Former Yugoslav Republic of Macedonia and Bulgaria, in an attempt to read the underlying meanings of the symbolisms selected by each state, in the geographical area of Balkans that is synonymous with nationalism, since the foundation of the modern nation-states on the region.

Altman comments that

For most people, stamps are objects that are bought after queuing at the post office, used, and discarded. Apart from stamp collectors few people really look at stamps, although almost everyone who is literate will make frequent use of them. Every recognised state -- and quite a few unrecognised ones -- produces stamps, increasingly far more than are necessary for purely postal purposes. In 1890, a few hundred stamps were issued worldwide; these were small, dignified and sombre in appearance. In 1990 almost 10,000 stamps will be issued, many of them large, garish and multicoloured. ...

"There is nothing in the world as invisible as monuments" wrote the German author Robert Musil, and in a sense stamps are monuments writ small. Almost no subject is too obscure to appear on stamps. Yet they are both miniature art works and pieces of government propaganda: they can be used to promote sovereignty, celebrate achievement, define national, racial, religious or linguistic identity, portray messages or exhort certain behaviour. Even the most seemingly bland design -- one depicting roses, say, or domestic animals -- has been deliberately issued by a particular government for a particular purpose.

It is true that it is difficult to read messages into certain designs, those just displaying a numerical value, for example, or those produced by a number of countries using astrological symbols. (Even though the latter would hardly be acceptable to certain orthodoxies, either Christian or Marxist.) But often what appears to be just a pretty picture has a deep significance in the local culture. Stamps of shells -- very common from Pacific Island countries -- draw on traditional associations; this design from Fiji, for example, shows shells widely used for currency. ...

It is the assertion of this book that even if you have never collected stamps in your life, to start really looking at them is ... to start seeing things anew. What appears on stamps is a message. It is the purpose of this book to decode these messages, and to show how that often ignored piece of coloured paper on the edge of an envelope is part of a picture of the world that governments seek quite consciously to create. In this sense, stamps make up part of what the Australian political scientist Donald Horne has termed "the public culture", namely that set of images and values which are propagated as the taken-for-granted picture of the world.

iMandy2.0

Mandy Rice-Davies, an actor in the 1963 Profumo Affair, famously responded to a barrister's statement that Lord Astor denied having an affair or having even met her with the comment "Well, he would, wouldn't he?". (After that, as she subsequently commented, her life was "one slow descent into respectability".) There's a hint of "they would say that, wouldn't they" in both Kraft's denial of cynicism - or a stuff up - in the launch of its new Vegemite Cream Cheese concoction and in the media beat up about the launch. The SMH reports that iSnack2.0 fury prompts naming rethink -

Consumer uproar over iSnack2.0 has forced Kraft to concede that its new Vegemite-cream cheese blend might have to be renamed. US-based Kraft is now considering how it could change the name of the product before half a million of the jars bearing the new name go on sale over the next few days. "There's a distinct possibility that we'll be critically evaluating the name", Kraft's head of corporate affairs Simon Talbot said today. "The name isn't resonating with success or favour."

How very very strange ... and sad that the matter's featured in the Herald as the paper slides downmarket as a purveyor of infotainment and corporate media releases.

The number of negative comments posted on blogs and on social networking sites is now running into the thousands, prompting Kraft to step back from fully endorsing the new name, which was chosen from 48,000 as part of a competition to get Australians to name the new spread. Kraft has about 500,000 jars of the iSnack2.0-labelled product in warehouses in Sydney and Melbourne. They will start arriving on supermarket shelves today, Mr Talbot said. That is about two months of supply, he said. ... But the new name has roused almost universal indignation.

The marketers may be dancing all the way to the bank - two items in the SMH, let alone all those "thousands" of negative comments (including this author's snark) are one way of getting exposure for a household staple. Or it could just be another demonstration of not letting your creatives and MBAs off the leash, in case they succumb to the fad (not dead, just smells that way) for whacking an e- or an i- in front of every moniker or spraying 2.0 on the label. A later SMH item reported

Kraft crumbles: iSnack2.0 scrapped Kraft has bowed to public pressure and ditched the name iSnack2.0 for its new Vegemite-cream cheese blend. "We have been overwhelmed by the passion for Vegemite and the new product. The new name has simply not resonated with Australians. Particularly the modern technical aspects associated with", said Kraft spokesman Simon Talbot. In a statement this afternoon, the company said it would once again throw open the challenge to Australians to come up with a new name. But the company denied it had all been a publicity stunt. "At no point in time has the new Vegemite name been about initiating a media publicity stunt," Mr Talbot, said. "We are proud custodians of Vegemite and have always been aware that it is the people's brand and a national icon." Thousands of the jars with the new name will be distributed to supermarkets ready to go on sale, ensuring that the soon to be scrapped name will quickly become a collectors' item.

Fake kids and early demises

The BBC reports the arrest of Colombian conman Juan Carlos Guzman-Betancourt, who first attracted attention in 1993 when he claimed to be a 13-year-old orphan by the name of Guillermo Rosales who had hung on to a plane's landing gear on a flight from Colombia to Miami. Nothing like being discovered wandering the tarmac looking winsome after a supposed intercontinental exploit. That was enough to tug the heart-strings of well-wishers until he was sprung a few months later, with the oh so inconvenient revelation that he wasn't an orphan, hadn't spent a couple of frigid hours in the wheel bay high above the clouds, was age 17, had relatives near Miami and had a criminal record in Colombia.

The fraud is reminiscent of other exploitations of good will (or sheer gullibility - especially in relation to 'children' - and the absence of ready mechanisms for identity verification). Serial imposter Frédéric Bourdin, for example, recurrently posed as a teenager. At age 31, in 2005, he was sprung after spending a month at a French school in the guise of a 15 year old (supposedly a Spanish orphan named Francisco Hernandez-Fernandez). His headmistress defended the delay in recognition, explaining that he "appeared a bit older than his friends - two or three years at most".

Bourdin had previously served a six-year prison term in the US after posing as a long-lost son. He also claimed in 2004 to be a boy of 14 who disappeared near Grenoble in 1996 at the age of six. In his guise as the long-lost son he lived with his supposed parents for three months before his deception was exposed by a journalist and confirmed by a DNA test. He was deported from Spain after he claimed to be Ruben Sanchez Espinosa, whose mother supposedly died in the 2004 Madrid train bombings. He also posed as a tiger tamer, a rich British holidaymaker, a businessman and a college lecturer. The tiger tamer I can understand - everyone wants to be a lion or tiger wrangler.

28 year old drifter James Hogue, portrayed in The Runner: A True Account of the Amazing Lies and Fantastical Adventures of the Ivy League Impostor James Hogue (New Press, 2008) by David Samuels, persuaded Princeton University that he was a 16-year-old. If you're shaving a mere 12 years off your age it is presumably a doddle to also claim that you are an orphan (cue tea, sympathy and access to the endowment), a cowboy and and a star athlete. Hogue got rumbled from Princeton, served time for defrauding the university and then turned up at Harvard. He went on to commit a range of crimes under different names.

29 year old convicted sex offender Neil Rodreick attended an Arizona public school for four months in the guise of Casey Price, supposedly a seventh grader, and Oklahoma schools in 2005 as a supposed 12 year old. Rodreick was arrested in 2007. 32 year old Brian MacKinnon duped teachers and pupils at Glasgow's Bearsden Academy into believing that he was 17 year old Canadian Brandon Lee. He had been a Bearsden student 13 years earlier. After matriculating from Bearsden he started a medical degree at the University of Dundee, being discovered when his passport was found during a holiday in Tenerife.

22 year old US sex offender Joshua Gardner less successfully posed in 2005 as 17 year old Caspian James Crichton-Stuart IV, supposed fifth Duke of Cleveland. If he had adopted a less glittering persona - how many dukes go to Minnesota high schools - he might have got away with it.

Guzman-Betancourtcase has been in and out of prison and detention centres, punctuating a life of frauds that typically appear to take place in upmarket hotels. A UK court sentenced him to three and a half years in prison in 2005 for stealing jewellery worth £150,000, cash and other goodies over six years. When arrested he was found to have a range of false IDs, including a Russian passport and a Spanish passport in different names with his photograph. After two months as a guest of HM he reportedly persuaded prison authorities to allow him go to a dental appointment without a minder. Oops, he didn't come back to his cell. 

In 2006 he was sentenced in Eire to two years for a burglary at the Merrion Hotel in Dublin, along with two concurrent sentences of 18 months for theft by deception. Reporting at that time suggested that "awaiting him upon his eventual release is a European arrest warrant issued by the French authorities in connection with 13 offences allegedly committed in hotels in France". The BBC report indicates that he's used at least 10 aliases and has been wanted in Canada, Japan, Mexico, Russia, Thailand, Colombiaand Venezuela. Reports elsewhere note that he has been deported from the US three times and has received two non-custodial sentences for theft along with one for credit card fraud.

His latest detention was in Vermont, for an attempted illegal border crossing. (He supposedly inadvertently wander across the line from Canada to seek help for a broken-down car and produced a Spanish passport in the name of Jordi Ejarque-Rodriguez with travel stamps - from Turkey, Egypt, United Arab Emirates, Bahrain, Oman and Jordan - that may or may not be genuine).

It's been a good month for identity offences, with Paul Terroni for example being refused bail by a Sydney court over a conspiracy with his mum. She'd claimed that he'd drowned on a trip to Ecuador and asked for his $239,000 life insurance cover. She duly provided an Ecuadorian death certificate. Ah, the age of miracles is with us - Terroni allegedly returned to Australia from the Ecuadorian equivalent of the Reichenbach Falls a year or so later, using an Ecuador passport in the name of Gabriel Sanchez Cedeno. He seems to have lived in Sydney for a year before being arrested, along with his mum, and hit with a string of charges that include provision of a false death certificate and obtaining money by deception.

The scam is an echo of past death-by-drowning to collect insurance, including John Stonehouse, Ivan Manson, Robert Granberg, Bruce Dale and of course canoeist John Darwin.

Thwock

After a day discussing Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406, R v Dudley and Stephens [1884] 14 QBD 273 DC and Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131, legal positivism and the Freedom of Information Amendment (Reform) Bill 2009 (Cth) [PDF] I can't resist the following extract from an item in the London Review of Books.

The American philosopher Sidney Morgenbesser (1921-2004) was an odd case. For decades he held the prestigious John Dewey chair in philosophy at Columbia University. Before that, he was mentor to Hilary Putnam. Yet he rarely wrote anything. Instead, like Socrates, he was known for his viva voce philosophising. He was also known for his 'zingers', the most famous of which was allegedly uttered during an address on the philosophy of language being given by J.L. Austin. "In some languages", Austin observed, "a double negative yields an affirmative. In others, a double negative yields a more emphatic negative. It is curious, though, that in no language known to me, whether natural or artificial, does a double affirmative yield a negative". At which point Morgenbesser piped up from the back of the audience: "Yeah, yeah."

What would Morgenbesser make of Total Recall: How the E-Memory Revolution Will Change Everything (Penguin, 2009) by Gordon Bell and Jim Gemmell? The book - companion site here - appears to be one of those Kurzweil-style tracts that envisage people will shortly 'upload' their 'consciousness' to machines and live happily, albeit disembodiedly, ever after.

What if you could remember everything? Gordon Bell and Jim Gemmell draw on their experience from the MyLifeBits project at Microsoft Research to explain the benefits to come from an earth-shaking and inevitable increase in electronic memories. In 1998 they began using Bell, a luminary in the computer world, as a test case, attempting to digitally record as much of his life as possible. Photos, letters, and memorabilia were scanned. Everything he did on his computer was captured. He wore an automatic camera, an arm-strap that logged his bio-metrics, and began recording telephone calls. This experiment, and the system they created to support it, put them at the center of a movement studying the creation and enjoyment of e-memories. ... 

Total Recall provides a glimpse of the near future. Imagine heart monitors woven into your clothes and tiny wearable audio and visual recorders automatically capturing what you see and hear. Imagine being able to summon up the e-memories of your great grandfather and his avatar giving you advice about whether or not to go to college, accept that job offer, or get married. The range of potential insights is truly awesome. But Bell and Gemmell also show how you can begin to take better advantage of this new technology right now. From how to navigate the serious question of privacy and serious problem of application compatibility to what kind of startups Bell is willing to invest in and which scanner he prefers, this is a book about a turning point in human knowledge as well as an immediate practical guide.

Total Recall is modestly promoted as "a technological revolution that will accomplish nothing less than a transformation in the way humans think about the meaning of their lives". Ah well, wouldn't be much of a revolution if it didn't imply some sort of claim to higher consciousness. And of course -

The Total Recall Revolution is Inevitable. It will change what it means to be human. It has already begun.

Inevitable just like Communism? "Digital Immortality" [PDF]. For a sceptic such as myself the Humanity 2.0 proclamation has echoes of product recall ... the revolution doesn't quite work as promoted, even putting aside the puffery, and arguably isn't needed. Josie Appleton deftly commented in 2004 that

inflated expectations are being invested in these technologies. There is an idea that they can provide people with a firmer sense of identity, at a time when people often find it difficult to see a coherent narrative to their lives, and experiences often seem insubstantial - not quite 'real'. According to Lindholm, this could be one of the attractions of the Lifeblog: 'You can see very clearly a narrative of your life; some sort of chronological sequence gives meaning to people. It really allows the user to go back and reflect on what a person's life looks like.' The idea is that this birthday or that holiday is photographed and ordered, month by month, and you can see it all before you. But this is a flimsy form of personal narrative. A Lifelog can't give you a life - it's just a way of storing data from your mobile phone. A photograph of every memorable event of your existence wouldn't give you a 'narrative' if you didn't have one already.

A crueller writer dismissed the extropian nonsense as

a lot of young, pasty, lanky, awkward ... white males talking futuristic bullshit, terribly worried that we will take their toys away

I'm unpersuaded that we need or even want to be able to recall everything. As Viktor Mayer-Schoenberger argues in Delete: The Virtue of Forgetting In the Digital Age (Princeton University Press, 2009) there is much to be said for elision and loss, irrespective of whether we want a camera in every buttonhole, brassiere, coffeepot or potplant. Some sorrows should be buried; some shopping lists consigned to the wastepaper bin. We might aspire to record everything; we would be better occupied making sense of what we have got. 

Bell's notion of total recall (bigger and broader is better) collides with Strachey's notion of discernment -

row out over that great ocean of material, and lower down into it, here and there, a little bucket, which will bring up to the light of day some characteristic specimen, from those far depths, to be examined with a careful curiosity.

Show and Tell

Paul Kelly, in The March of Patriots: The Struggle For Modern Australia (Carlton: Melbourne Uni Press 2009), notes the dilemma facing liberal democratic states such as Australia that aspire to act on a humanitarian basis, embody the rule of law (as distinct from rule by law, evident in China), are concerned about due process in bureaucratic decision-making and have the capacity to exclude potential migrants from entry to the jurisdiction. In essence, Australia gets to pick and choose who it lets into the country (and who it removes for breach of entry requirements), with some prioritisation of refugees and questioning of bona fides.

Disagreement about the mechanics of that questioning and implicitly of prioritisation (some people are construed as more worthy than others) is evident in the NAOX v Minister for Immigration & Citizenship [2009] FCA 1056, a judgement by Spender J of the Federal Court.

The Court strongly criticised the Refugee Review Tribunal (RRT), an administrative review body that reports to the Minister and is concerned with decisions by the Minister's department under the Migration Act 1958 (Cth) [here] regarding refugee status.

It found that the RRT had ignored evidence and twisted facts in dealing with the claim for asylum by a gay Bangladeshi couple, concluding that the Tribunal's ruling that the men were not gay (and would therefore not face persecution in their homeland and thus were not legitimate refugees) was "not an exercise in honest fact finding".

The Court considered that the RRT decision was "not made in good faith", being "deliberately calculated" to get round problems caused by a High Court ruling - Appellant S395/2002 v Minister for Immigration & Multicultural Affairs; Appellant S396/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 - in relation to an earlier decision on the two men by the Tribunal. In thus characterising the RRT's decision-making Spender J commented that "Such a finding is one that is not reached lightly, and unsurprisingly is one that is very rare".

The men had arrived in Australia in 1999 and applied for protection visas. That required them to persuade the Department that each was a person who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The Department refused to grant either man the requested refugee status, on the basis that

In his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters.

Being gay does not necessarily equal persecution and therefore result in refugee status.

In considering the Department's negative response to that application the RRT accepted that the men engaged in same sex activity but ruled that they could not gain protection as refugees because they would not face persecution, if returned to Bangladesh, as long as they were "discreet about such matters". Don't ask, don't tell and definitely don't do anything to alert a mullah, a vigilante or a representative of the police, given that homosexual intercourse is a criminal offence under s 377 of the Penal Code of Bangladesh.

In hearing an appeal from the Federal Court the High Court said that the Tribunal did not seriously consider the threat of physical harm (including violence by police). It ordered a review of the decision, although noting disagreements about both evidence and interpretation. Callinan and Heydon JJ for example commented

The great difficulties for the appellants were that the accounts of their experiences in Bangladesh and the attitude of society and officials there to homosexuality, were not only full of inconsistencies but also of improbabilities. That is why the Tribunal found against them.

The Tribunal then found the men "were not homosexual" and that they had not lived in a homosexual relationship, concluding instead that they were close relatives and indeed been married to women (regarded as a litmus test for sexual affinity and thus refugee status, although arguably not definitive, as men with a stigmatised same sex affinity might choose to marry out of fear or for cultural reasons).

Spender J commented that "Confronted by this judgment in the High Court, the second Tribunal found the only way out to justify the refusal of the protection visas. It found that they were not homosexuals after all". He notes that the men used DNA tests to disprove claims that they were related. He commented that the Tribunal had "irrationally and indefensibly" interpreted the results of those tests as indicating that the men might be cousins. Its treatment of the DNA tests had been "contrived to support a predetermined result".

The men were presumably somewhat distressed, responding to the Tribunal's scepticism by offering to have sex in front of a witness nominated by the RRT.

Should you require it (although such a step would cause us significant embarrassment) we are prepared to have an adult witness view us engaged in an act of homosexual intercourse and then attest before you to that fact. It would be illogical were you to refuse such an offer and then go on to find ... that we are not homosexual.

That seems to have unimpressed the bureaucrats, with the RRT finding that one of the men was not a credible witness because he refused to answer questions about whether they used lubricants during sex, a refusal justified on the grounds that such matters were personal. The Court commented that it was unfair to declare him not credible, simply because he failed to answer a question about lubricants which had been prefaced with "Now you may not want to answer this question".

Spender concluded that the material sought by the Tribunal had "the flavour of interrogation" and that the RRT was "guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not in a homosexual relationship". Damningly, he commented that

I am satisfied that the decision of the third Tribunal has been moulded to support a particular conclusion, namely, that the appellants were not homosexual. I am satisfied that this was done, not as a genuine exercise of administrative fact finding to which Courts, and in particular this Court, should, and must, defer, but in an attempt to insulate the finding from judicial examination ...

Kids, Crime & Justice

The Australian Institute of Criminology (AIC) has released a 135 page report [PDF] on Juveniles' contact with the criminal justice system in Australia. 

The report

presents the first collection of data on juveniles' contact with the criminal justice system as both alleged/convicted offenders and complainants/victims in New South Wales, the Australian Capital Territory, Victoria, Queensland, Western Australia, South Australia and the Northern Territory. Its primary objectives are to outline data from each of these jurisdictions on juveniles' contact with the policing, courts and correctional systems and to determine what we do and do not know about juveniles’ contact with the criminal justice system.

Media coverage (eg here) has highlighted the implications of the disadvantage experienced by many Indigenous youth, with the Australian for example commenting that the report

paints a disturbing picture of young Aborigines' contact with police. It may go some way to explaining why indigenous 10 to 17-year-olds are 28 times more likely to be in detention than non-indigenous youths.

AIC director Adam Tomison was quoted by the Australian as commenting that the fact that many young indigenous Australians lived in disadvantaged circumstances went a long way to explaining their increased contact with police.

In terms of whether there is bias or racism in their treatment, I think you would need to do further studies looking at police contact in disadvantaged communities where there are kids of different backgrounds. 

Then we would start to tease out how much of this is an issue of Aboriginality and how much is poverty and disadvantage. 

Also geography comes into play. Authorities in states with more remote communities have fewer options to divert juveniles from detention. If there are two young offenders, and one is from a relatively good home in an urban environment with plenty of treatment options around him and the other is from a remote location where similar options are extremely limited, who is more likely to be put in detention?

The same issue of the Australian highlights questions about identity, reporting that Queensland law allows 17-year-olds to be treated as adults and locked up in prisons instead of juvenile detention centres.

Community Services Minister Karen Struthers yesterday admitted that the estimated $200million capital cost to extend existing facilities to house 17-year-old offenders in juvenile facilities was the major reason no action was planned to redress the practice. This makes Queensland the only Australian state to imprison 17-year-olds in the adult justice system, a situation youth advocacy groups point out is clearly in breach of the UN Convention of the Rights of the Child. 

The founder of the prisoner advocacy group Sisters Inside, lawyer Debbie Kilroy, said the Queensland Labor government had legislated in 1992 to bring 17-year-olds into the juvenile justice system but it was "horrendous" they had never enacted that part of the legislation. 

"They are young children who are children in many different ways in the eyes of the law, except for the criminal justice system," Ms Kilroy said. 

"These teenagers, particularly the boys, are brutalised in the adult system. 

"They are not allowed to do 'adult' things such as vote or smoke a cigarette, but the Queensland government treats them as adult prisoners, even on remand. It is totally inappropriate and unsupportable." ... 

Latest figures provided by Corrective Services show that at midnight on September 23, there were 30 17-year-old males and two females held in Queensland facilities. They are kept segregated from other prisoners, but can choose to enter the general prison population. 

The offences committed or alleged to have been committed by the 32 in custody include one for murder, three for grievous bodily harm, five on assault charges, four on armed robbery, eight on robbery with actual violence, four on breaking and entering a dwelling and one on going armed to cause fear.

Conflicting placement of the borderline between childhood and adulthood - and the implications of those markers - might be borne in mind in considering proposals in the Green Paper on Electoral Reform (highlighted here) to allow voting in federal elections from the age of 16. 

  Fear or favour: sexual assault of young prisoners (Southern Cross University Press, 1998) by David Heilpern and other works on life inside carceral microsocieties of course indicate that new infrastructure isn't a silver bullet and that 'brutalisation' is a common, unremarked feature of juvenile offender institutions. Young offenders, such as those noted in the newspaper report, will brutalise and/or be brutalised by their peers whether they are in a youth institution or among adults. Perhaps we should aim to ensure better treatment for everyone in custody, irrespective of ethnicity or age and without needing to derive legitimacy from citation of the UN Convention of the Rights of the Child.

Magic Markers

Australian governments, like their overseas peers, have handed substantial responsibilities to faith-based organisations, which provide services - on a commercial or ostensibly non-commercial basis - regarding employment, education, medical dignostics, medical treatment, housing, rehabilitation and other matters. ('Ostensibly' is used advisedly, given the murkiness of notions of cost recovery in many organisations.)

That is an issue as those governments wrestle with a cultural pluralism and with advocacy by interest groups that demand exemptions in broad anti-discrimination legislation, typically privileging faith-based (or merely faith-labelled) entities. Those exemptions - a licence to discriminate - reflect the realities of politics and notions that religious belief/affiliation deserves special protection from a state that is secular or that lacks a particular faith's confidence that its truths supersede the truths offered by competing faiths. Discrimination law in Australia is thus bounded by magic markers, resulting in what some students of jurisprudence (and some victims of discrimination) regard as arbitrary, unfair and inconsistent treatment.

Such inconsistency - derived from politics rather than principle - is evident in the Victorian Attorney-General Rob Hulls' announcement of what one observer tagged "a controversial compromise" that allows the state's religious groups to continue to discriminate against single mothers, people who hold different spiritual beliefs and of course GLBTIQ individuals. (The mere existence of the latter, alas, outrages some religious individuals, including those who warn that the Sodom of the South will be engulfed by a tidal wave, destroyed by an earthquake or otherwise smited by a particular deity's wrath.)

The compromise, to be embodied in changes next year to the Equal Opportunity Act 1995 (Vic) that flow from the Charter of Human Rights and Responsibilities, is expected to protect the right of hundreds of church-run organisations (including welfare services, hospitals and schools) to refuse to employ or even provide services to people who they believe "may undermine their beliefs". That employment might be in positions, such as cleaners or technicians, where there is little or no opportunity for the stigmatised people to proselytise or otherwise undermine the belief or "religious sensitivities" of adherents of the particular faith.

The protection will allow the organisations to continue discriminating on the grounds of sexuality, gender identity, marital status and parental status. The groups will however be unable to discriminate on the basis of race, age, political beliefs and political activity, or disability. Discrimination regarding breastfeeding will also be prohibited.

We might ask whether sexuality or marital status are less fundamental identities than political belief or even race. The 'compromise' will serve to entrench discrimination in Victoria under the Equal Opportunity Act on the basis of "religious freedom". It preempts a report by the Scrutiny of Acts & Regulations Committee of the Victorian Parliamentary.

The state Human Rights Commission, in discussing the review of the Act, states that

The Equal Opportunity Act recognises that in order to operate in a balanced and fair and common-sense way in the community - sometimes exceptions need to be made. It recognises that not every situation is covered by a blanket law that makes all discrimination against the law.

Exception applications need to show that they advance equal opportunity.

Exceptions and exemptions provide a way to balance people's competing rights and freedoms.

Do the exemptions, like exception applications', "advance equal opportunity" and more broadly promote a civil society that is not disfigured by the intolerance (an intolerance sometimes marked by assault, psychological harm and even death) espoused by some faith-based organisations? Are they consistent with the Attorney-General's acknowledgement in July 2009 that "Discrimination is not always an obvious intruder. It does not confine itself to unlucky individuals but instead can take root in institutional foundations. As a result, whole groups can be at a disadvantage" and that "some people argue the value of freedom of religion does not entitle religions to discriminate against the difference and diversity of others".

At that time Mr Hulls said that

I'm proud that, once again, Victoria is leading the nation by testing the limits of our equal opportunity legislation. It's no longer sufficient to accept the Orwellian proposition that "all opportunities are equal but some are more equal than others". It is time to recognise that barriers to participation may have to be removed if all Victorians are to have a genuinely fair go.

Reliance on scarewords such as 'Orwellian' is never a good sign. In considering use of the magic marker in the context of Australian human rights law and workplace discrimination law it is difficult to refute the comment by academic Margaret Thornton in today's Age that the compromise is inappropriate.

In terms of a person's private life ... their sexual preference or marital status really has nothing to do with their ability to perform a job. Being able to discriminate on marital status is particularly absurd. It is really out of date. It really amounts to the policing of women because the focus is on single mothers, not on men.

The Attorney-General's 25 September media release states that

Discrimination on the grounds of race, disability, age or physical features should not be justifiable by reference to religious belief. Such discrimination is not something religious groups want or need in relation to the practice of their beliefs.

It is good to know that he knows what religious groups "want or need", although a sceptic might ask whether those groups - and society as a whole - need discrimination on the basis of marital status or sexual affinity. Mr Hulls noted that religious groups

would continue to be able to discriminate on other grounds including sexuality or marital status if it was in accordance with their beliefs. These proposed changes follow consultation with religious bodies and have the support of the Catholic Church.

Realpolitik trumps rights?