bubonic plague 2.0

One of my friends questions the anxieties evident in some conceptualisation of same-sex affinity (or merely gay identity) ... apparently being near someone who's gay, sighting someone who's gay, encountering gay erotica or merely using a 'gay' product (whatever that is) is enough to 'make you gay'. Perhaps people conceptualise 'gayness' as a virus, spread through the air like the plague or - great discovery for science - via fibre optic cable.

I was reminded of her questioning on reading reports in today's SMH about statements by "outspoken" footballer Jason Akermanis that gay footballers should stay in the closet. (ROFLMVAO at Mr Akermanis' photo ... so very Village People).

He is reported as stating that -

I'm not sure that's very safe and healthy for the competition. What you do in your private life is your business. ...

If a player wants to out himself, then I say good luck ...

But I believe the world of AFL footy is not ready for it. To come out is unnecessary for a lot of reasons.

Imagine the publicity associated with a current player admitting he's gay.

It would be international news and could break the fabric of a club.

Presumably we've become so blase about leading footballers taking banned substances, dealing in banned substances, getting 'wasted' yet again and writing off their sports cars, raping adult female fans or engaging in group sex - oh, homosociality! - with minors that we don't need to fret about publicity or torn fabric.

Mr Akermanis is reported as explaining that 'footballers are at their peak of masculinity, which means homophobia is "almost at its peak".' Uh huh.

"Some footballers think there's something wrong with people, they have some kind of disease."

"But some of my, the homoeroticism around football clubs ... what workplace would you be able to see 20 men nude all the time if you wanted to?

"When you're slapping blokes on the bum and just having a bit of fun, what would that do to a man in there when you actually work out, 'Oh wait a second, wait a second. I don't know if I can handle that guy"'.

I must go to a football game ... the last time I indulged the players seemed to be wearing clothes, so suggestions of continuous nudity are misplaced.

Akermanis is reported as commenting that 'it would be unsafe for players to be openly gay and it could make other players uncomfortable since they think homosexuals suffer from some kind of disease'. Presumably those players can be educated about the principles of contagion ... no, you won't become gay merely by being within 50 metres of 'one of them', by borrowing a towel or a pair of boots, or by slapping the wrong bloke on the bum. No need to sterilise football between passes. No need to spray toxic substances on the grass in case the gay virus has escaped.

V sad.

Akermanis (or his ghostwriter) might have benefited from reading Come Out To Play: The Sports experiences of Lesbian, Gay, Bisexual and Transgender (LGBT) people in Victoria [PDF] which concludes that -

Most Come Out To Play participants were sports devotees who valued these health, social and achievement benefits of sport. A significant proportion also persisted with their sport involvement even in the face of sexuality and gender based discrimination and abuse.

Other studies have demonstrated that school sport is a key site of homophobic bullying (Brackenridge, 2006; Hillier, 2005) and sexism (Wellard, 2002, Penney, 2002). Survey participants who had positive experiences of sport and physical education at school indicated that they were confident and successful in their sporting skill and 'perceived ability at sport was a strong indicator of whether or not this area of study was remembered as positive or negative'. However, a significant proportion (over 45.0%) experienced homophobia as a common part of their sporting education, and this was more pronounced for men than women in the study. It was also troubling that nobody in the study gave examples of teachers supporting SSAY in their sports endeavours, or intervening when homophobic language and bullying did take place.

Brackenridge et al. (2006) conclusion that the overall effects of homophobic bullying on sports for boys who are non-athletic and or perceived as gay, as well as girls in general – that it drives down sports participation, or Hillier et al. (1998, 2005) finding that sport was one of the main environments that same-sex attracted young people within Australia felt least safe, could not be assessed by this study because of the sporty nature of the LGBT sample as well as the age range surveyed (over 18 years). Specific research needs to be conducted on sports participation including the benefits, barriers, facilitators and issues for SSAY in Australia. Furthermore, the overall participation rates of LGBT Australians in sport and physical activity have not been researched. Participation surveys such as the Sweeny reports and Australian Bureau of Statistics data do not even ask respondents to identify their sexual orientation. These research gaps need to be addressed. However, there is sufficient research evidence demonstrating that the school and sports environment present significant challenges for SSAY and that targeted programs that address homophobia in sport and promote sports participation and the inclusion of SSAY are timely. This would need to occur in the educational environment, ensuring that physical education and health teachers in particular, are professionally prepared and sensitive to this issue.

The shaping fields within society and sport for these discriminatory experience centre on traditional discourses of gender and sexuality. The qualitative responses from the Come Out To Play research indicated that ‘strong sanctions’ were imposed on those who violated these ‘gender and sexuality norms’ during their sports experiences. Homophobic and / or sexist verbal insults and threats, physical assaults and general exclusionary practices had a negative impact on the LGBT sports people who were the targets of these sanctions. Participant's responses to the closed questions of the survey also portrayed a challenging mainstream sporting environment for many LGBT people.

Forty-one percent of survey participants had experienced verbal homophobia at some time during their sport involvement and for the majority this experience was common place. A similar percentage had experienced sexism during their involvement in sport and over 80.0% of this cohort reported that such sexism was a common occurrence. Whilst 33.0% of survey participants identified their sports club as very welcoming of non-heterosexual people, a further 36.0% reported their mainstream club to be neither welcoming nor unwelcoming and 13.6% reported their club to be unwelcoming to very unwelcoming to them as non-heterosexuals. Only 12.1% of survey participants indicated that their mainstream sports club had policies that promoted the safety and inclusion of LGBT people, whilst a further 44.2% reported that no such policies existed.

It is not surprising in this challenging context that nearly half of the survey participants were not 'out' in their mainstream sport, whilst a further 33.0% were 'out' to some. The main reasons given for not being 'out' were unsure of sexuality, safety and wellbeing concerns such as the fear of being judged, harassed, discriminated against, abused and even physically assaulted. Feelings of isolation also resulted when few if any LGBT club members were 'out'. Gay men were the least likely to be 'out' in a team sport, compared to an individual sport and were also significantly less likely to play team sports than women. Although the women in this survey reported experiencing greater levels of homophobia and sexism, the potential of the abuse for not being heterosexual was more serious for gay men. The dynamics of gender, sexuality and sport played out in the stories and responses of these survey participants was rich and instructive. Whilst there were some positive sport stories from this survey that provide good practice examples of open and inclusive sports environments for LGBT people, many exemplified conditionally tolerant environments at best and hostile ones at worst.

Goodbyes

From the NY Times obituary of the great Yvonne Loriod -

For Messiaen, birdsong provided intimation of the music of heaven, unclouded by human egotism. He and Ms. Loriod would often go off in search of these natural singers, with Messiaen notating their melodies in the field and later incorporating them into his music.

In Ms. Loriod he found a musician who could provide avian qualities of agility and spectacle. "I have", he once said, "an extraordinary, marvelous, inspired interpreter whose brilliant technique and playing — in turn powerful, light, moving and colored — suit my works exactly."

It delighted him that her name was homophonous with that of a singing bird: the loriot, or golden oriole, which duly has its place in Catalogue d'Oiseaux.

From the ABC site quoting footballer Brett Kirk on his imminent retirement (I have no idea who he is, tho presumably he's a living national treasure, such as the teenager who's just sailed around the world) -

I want to be the dog that sticks its head out the window and lets the wind fly through its hair.

Vasily Rozanov (shortly before dying of cold and starvation in 1919), on an "iron curtain" coming down "with a clang, thud and bang" at the 'end of Russian history' -

The performance is over and the members of the audience, who have stood up saying "It's time to put on our overcoats and go home" look around to find neither their overcoats nor their homes exist any more.

Watchlists

SSRN features Jeffrey Kahn's 67 page 'The Extraordinary Mrs. Shipley: How the United States Controlled International Travel Before the Age of Terrorism' (forthcoming as a Southern Methodist University Dedman School of Law Legal Studies Research Paper).

Kahn comments that -

Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs Ruth B. Shipley, the Chief of the State Department's Passport Division from 1928 to 1955. Mrs Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.

This article examines how Mrs Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then compares her work to the current watchlisting procedures employed by the Terrorist Screening Center and Department of Homeland Security. The article concludes that today's so-called “No Fly List” used to deny boarding passes to suspect travelers resonates with Mrs. Shipley’s passport power, which was rightly scaled back by the courts and Congress as incompatible with our constitutional values.

He notes that her -

office was delegated the discretion to grant, deny, restrict, and revoke passports. Although equipped at its peak with a staff of 225 people, Mrs. Shipley personally reviewed each application. Her word was law since, prior to the Supreme Court's 1958 decision in Kent v. Dulles, the decisions of the Passport Division were not subject to judicial review. That is why Secretary of State Dean Acheson later referred to the Passport Division as Mrs. Shipley's "Queendom of Passports" and noted her service as chief of an office with "almost absolute power to decide who might leave and enter the country". In this capacity, she excelled. As she neared retirement, John Foster Dulles recommended Mrs. Shipley for the Presidential Medal for Merit, the highest civilian honor awarded by the United States Government at that time. The citation prepared to accompany the award commended Mrs. Shipley, who "being alert to the dangers inherent in the travel abroad of communists and other subversives, initiated and steadfastly adhered to the policy of refusing passports to applicants whose prior actions indicated that the proposed travel would be inimical to the best interests of the United States".

State of the union

The Media, Entertainment & Arts Alliance (aka the 'creatives union') has released a 48 page report on media freedom in Australia.

Progress under liberty: the state of press freedom in Australia 2010 argues that progress has been made regarding Freedom of Information and whistleblower protection, but more work is needed.

The report features a digest of press freedom issues such as shield laws and anti-SLAPP statutes, along with the views of leading journalists, academics and legal experts.

Liberation Theology

From Noah Berlatsky's 'The Artist As Troll' -

One wonders what the Frankfurt School would have thought of the new day that has now dawned. If Benjamin's beloved Brecht encouraged audiences to think critically about the artist’s work, surely blogs, Twitter, and comment threads encourage the audience to come up on stage, beat the actors bloody and shit on their remains while screaming racial epithets sprinkled with smiley icons. If Benjamin truly believed, as he claimed, that the best art, the most valuable art, the art with the highest "technical quality" was that art which succeeded in "promoting the socialization of the intellectual means of production" — well, you'd think he must be right now leaping from his grave in joy and wonder, scurrying over to the nearest Internet café, and greedily scrolling through the latest 4chan flame war, all the while muttering to himself, "Lolz! Lolz! The revolution will be Rickrolled!"

The idea that the people will save culture has an almost irresistible fascination for leftists. On the one hand, you have Frankfurt School dyspeptics who think corporate crap has blinded us all. On the other, you've got cultural studies Pollyannas claiming that fans of American Idol creatively repurpose the show as a site of resistance to hegemony. But whether sad or cheery the dream is the same: some day the masses will rise up and write better novels their own damn selves.

Now the people are here, though, and, well, it’s a mixed bag. Certainly, lots and lots of folks who could never have gotten their voices out before are able to do so. The result could not exactly be characterized as an increase in art's "technical quality", though, nor as a socialist utopia. Capitalist desires have not been shucked; instead, they've metastasized. Given the means of production, as it turns out, people mostly want to scream fire in a crowded messageboard, talk about their furry fetishes or check the weather.

The point isn't that the people are innately frivolous or deluded—in fact, there's an avalanche of political discussion online, and the Iranian uprising showed quite clearly that access to communications technology can have potentially liberating effects. But hedge as you will, the democratization of the literati cannot be said to have created a world in which socialism is ascendant, or in which there is an overwhelming majority of speech exhibiting what Benjamin refers to as the "correct political tendency". It's almost as if the rallying cry "every man a genius!" is as much a call to debased polymorphous revels as to fraternal salvation.

Hate Crime

'Hate Crime Laws in Australia: Are They Achieving Their Goals?' by Gail Mason in 33(6) Criminal Law Journal (2009) 326-340 is now available via SSRN. It extends the discussion in Hate Speech and Freedom of Speech in Australia (Federation Press, 2007) edited by Kathleen Gelber & Adrienne Stone.

The article notes that several common law countries have introduced 'hate crime' law, ie legislation designed to respond to the problem of prejudice-related crime. It discusses recent developments in Australian hate crime law, suggesting that there are three models (the penalty enhancement model, sentence aggravation model and substantive offence model) and then analysing some reported decisions under the sentence aggravation provisions that have operated in NSW since 2003 under s21A(2(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Mason suggests that four significant issues are apparent: whether the provisions apply to individual forms of hatred; whether intra-group conflict is covered; whether criminal conduct influenced by racial stereotypes comes within the ambit of the applicable motive test; and which groups should be protected under the legislation.

In critiquing the decision by the NSW Supreme Court (Criminal Appeal) in Dunn v R [2007] NSWCCA 312, an appeal against conviction of a man who sought to burn down a neighbour's residence because he (incorrectly) believed that the neighbour was a paedophile, Mason comments that -

This is a provocative and unique decision. Paedophiles have never been recognised as a protected category under hate crime laws. New South Wales appears to be the only jurisdiction in the world to do so. As discussed above, hate crime laws are designed to punish and denounce violence that is grounded in prejudice towards communities who are the historical objects of oppression: racial, religious, ethnic, gay/lesbian minorities and so on. Prejudice by its very definition denotes an irrational or unjustified negative attitude towards members of these communities. Paedophiles can be distinguished from groups conventionally protected under hate crime law on the basis that moral condemnation of their conduct is far from unjustified; their sexual conduct inflicts a clear and identifiable harm upon others (children) whilst the conduct of these other minority groups does not. Thus, negative attitudes towards adults who sexually abuse children do not fit easily within contemporary understandings of prejudice. This is not, of course, to say that vigilantism against paedophiles is warranted.

Mason goes on to comment that -

Vigilantism against adults who sexually abuse children is unacceptable. However, as indicated above, the heavier penalties that crime laws impose are defended by advocates on the grounds of both proportionality and public policy. Hate crime is said to inflict greater harm than other crimes because it represents an attack upon the victim's core identity which, in turn, produces a sense of vulnerability within his/her wider community.

Ultimately, hate crime is said to undermine multiculturalism itself. Hate crime laws can thus be understood as an extension of anti-discrimination and equal opportunity principles into the criminal domain. Whether or not we agree with these ambitious social objectives, we need to recognise that by imposing harsher penalties such laws send the message that crimes motivated by prejudice are worse than crimes that are not accompanied by such feelings.

People Smuggling and Surveillance Creep

Today has seen the passage of the Anti-People Smuggling and Other Measures Bill 2010 (Cth), legislation to "significantly strengthen Australia's people smuggling laws" as part of the national Government's "multi pronged approach to combating people smuggling by enabling the Australian Security Intelligence Organisation (ASIO) to specifically investigate people smuggling and other serious border security threats".

Australia's domestic legislative framework criminalising people smuggling is founded on the Migration Act 1958 (Cth) for ventures entering Australia and the Criminal Code Act 1995 (Cth) for ventures entering foreign countries, whether or not via Australia. The Bill will insert into both the Migration Act and Criminal Code a new offence of supporting the offence of people smuggling.

The Bill will also harmonise people smuggling offences between the Criminal Code and the Migration Act to ensure that offences for people smuggling ventures entering Australia or foreign countries are consistently criminalised. In particular, the Bill amends the Migration Act to include a section equivalent to section 73.2 of the Criminal Code so that the aggravated offence of exploitation or danger of death or serious harm also applies to people smuggling ventures entering Australia.

The Bill amends the Australian Security Intelligence Organisation Act 1979 (Cth), the Proceeds of Crime Act 2002 (Cth), the Surveillance Devices Act 2004 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth).

It includes additional offences targeting those who finance or provide support for people smuggling activities, along with "strong penalties that recognise the seriousness of people smuggling offences". Provisions in the Bill include -

• a new offence of providing material support for people smuggling (with a maximum penalty of ten years imprisonment and/or a fine of $110,000);
• a new offence of people smuggling involving exploitation or danger of death or serious harm, applying to ventures entering Australia (with a maximum penalty of twenty years imprisonment and/or a fine of $220,000);
• ensuring that where a person is convicted of multiple people smuggling offences, mandatory minimum penalties set out in the Migration Act are applied; and
• providing greater clarity and consistency by harmonising people smuggling offences in the Migration Act and the Criminal Code (Cth).

The Bill also "enables Australia's national security agencies to collect foreign intelligence about people smugglers and their networks". The Surveillance Devices Act 2004 (Cth) establishes the framework for use by Commonwealth law enforcement agencies (and State agencies investigating offences with a federal aspect) of data surveillance devices, listening devices, optical surveillance devices and tracking devices. Normally a warrant is required
to install, use and remove those devices. The 2004 Act, however, includes provision for their use without a warrant in certain circumstances, for example where -

. the use of the surveillance device is immediately necessary to prevent the loss of any evidence relevant to that investigation
. the circumstances are so serious and the matter is of such urgency that the use of the surveillance device is warranted, and
. it is not practicable in the circumstances to apply for a surveillance device warrant.

The amendments to s 30 of that Act extend its coverage to all the aggravated people smuggling offences in both the Criminal Code and Migration Act, on the basis that currently an emergency authorisation is only available in connection with investigation of one offence relating to people smuggling, ie an aggravated offence of people smuggling with circumstances of exploitation or a danger of death or serious harm under section 73.2 of the Criminal Code.

Schedule 2 amends the ASIO Act to enable the Australian Security Intelligence Organisation (ASIO) to "play a greater role in support of whole of government efforts to address serious threats to Australia's territorial and border integrity, such as people smuggling". That role will include covert surveillance.

ASIO's functions, as set out in section 17 of the ASIO Act, include obtaining, correlating and evaluating intelligence relevant to security, and communicating any such intelligence for purposes relevant to security. The existing definition of 'security' in section 4 of the ASIO Act "does not specifically encompass border security issues", so that "ASIO currently has limited capacity to carry out its intelligence functions under section 17 in relation to threats to Australia's territorial and border integrity such as people smuggling". Schedule 2 of the Bill aims to amend the definition of 'security' in section 4 of the ASIO Act to include 'the protection of Australia's territorial and border integrity from serious threats'.