The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.

Assistance arrangements and use of services among persons with multiple sclerosis and their caregivers

A large population-based survey of persons with multiple sclerosis (MS) and their caregivers was conducted in Ontario using self-completed mailed questionnaires. The objectives included describing assistance arrangements, needs, and use of and satisfaction with services, and comparing perceptions of persons with MS and their caregivers. Response rates were 83% and 72% for those with MS and caregivers, respectively. Based on 697 respondents with MS whose mean age is 48 years, 70% are female, and 75% are married. While 24% experience no mobility restrictions, the majority require some type of aid or a wheelchair for getting around. Among 345 caregivers, who have been providing care for 9 years on average, the majority are spouses. Caregivers report providing more frequent care than do persons with MS report receiving it, particularly for the following activities of daily living: eating, meal preparation, and help with personal finances. Caregivers also report assistance of longer duration per day than do care recipients with MS. Frequency and duration of assistance are positively associated with increased MS symptom severity and reduced mobility. Generally there is no rural-urban disparity in service provision, utilization or satisfaction, and although there is a wide range of service utilization, satisfaction is consistently high. Respite care is rarely used by caregivers. Use of several services is positively associated with increased severity of MS symptoms and reduced mobility. Assistance arrangements and use of services, each from the point of view of persons with MS and their caregivers, must be taken into account in efforts to prolong home care and to postpone early institutionalization of persons with MS.

What is racism? Othering, prejudice and hate-motivated violence

The paper’s concern is the current difficulty, in journalism, the academy and politics, of discussing questions to do with race, ethnicity, difference and immigration because of the fear of being called a racist. It starts with an analysis of biographical interview data drawn from fifteen people who had variously acquired the label racist and who were part of a small-scale study into racism in the Midlands city of Stoke-on-Trent, UK conducted between 2003 and 2005. The interviews used the free association narrative interview method. This analysis revealed that most people do not consider themselves racist and that having a conviction for a racially aggravated offence or being a member of a far right organisation was not able to differentiate racists from non-racists. It also revealed a spectrum of attitudes towards immigrants or particular ethnic groups: strong expressions of hatred at one end of the spectrum; strong prejudicial feelings in the middle; and a feeling that ‘outsider’ groups should not benefit at the expense of ‘insiders’ (called ‘othering’) at the other end. The turn to theory for assistance revealed that, although hatred, prejudice and ‘othering’ are not the same thing, and do not have the same origins, they have become elided. This is primarily because cognitive psychology’s hostility to psychoanalysis marginalised hatred whilst its exclusive preoccupation with prejudice came effectively to define racism at the individual level. Progress in thinking about racism might consist of abolishing the term and returning to thinking about hatred, prejudice and ‘othering’ separately.

Vulnerability criminalised: Transgender people in prisons

Purpose of this paper: International research identifies transgender people as a vulnerable group in prison systems, with basic needs often being denied. This paper outlines Australian contexts of incarceration, and links between institutional responses and the vulnerabilisation of transgender prisoners. Design/methodology/approach: The paper critically analyses Australian prison policies regarding the treatment of transgender prisoners. Findings: The policy analysis illustrates the links between institutional practices and the increased vulnerability of transgender prisoners. The paper argues that policies further criminalise, and potentially doubly punish, transgender prisoners. Research limitations/implications: This paper analyses the publicly available policies on regulating transgender people’s imprisonment. Given the limited Australian research into transgender prisoner’s lived experiences, there is a gap in relation to policies, their perception, and how corrective services personnel enact the limited procedures available to them in managing transgender prisoners. Practical Implications: Current policies and practices significantly enhance the vulnerability of transgender prisoners. This policy analysis highlights the critical importance of policy and practice reform in relation to housing, safety, health and welfare services, and misgendering. What is the original/value of paper: The policy analysis provides practitioners with an outline of critical issues that arise when transgender people are imprisoned and suggests key areas for future research.

Critical criminological understandings of adult pornography and woman abuse: New progressive directions in research and theory

There is a small, but growing, social scientific literature on the racist and violent nature of contemporary adult pornography. However, considerably more empirical and theoretical work needs to be done to advance a critical criminological understanding of how such hurtful sexual media contribute to various forms of woman abuse in intimate relationships. The main objective of this article is to briefly review the relevant literature and to suggest a few new progressive empirical and theoretical directions.

Ethical values and the global carbon integrity system

There are many excellent books on climate justice and ethics, and their theorizing is a crucial and natural step in moving towards a justified response to this urgent problem. However, the purpose of this book lies elsewhere; it explores how ethical values can and should work in driving and structuring the global carbon integrity system.

Entanglements – activism and technology: Editors' introduction

Past issues of Fibreculture have examined activist philosophies from angles such as social justice and networked organisational forms, communication rights and net neutrality debates, and the push back against precarious new media labour. Our issue extends this work by capturing the complexities associated with the use of technology in activist contexts, and offering insights into how practitioners, scholars, and the makers of digital and networked technologies do and might need to work more collaboratively and pragmatically to address social justice issues.

Bringing up Children Gran’s Way: Insights from a research project on Indigenous child and youth mental health

Background In 2000, the Mater Child and Youth Mental Health Service Indigenous consultant saw that Indigenous families were isolated from kinship networks following the assimilation policy and clinicians were largely unaware of these socio-cultural histories. Experiences of marginalisation by mainstream society and services were exacerbated by assumptions clinicians made about this population. To enhance Mater’s care the consultant undertook research with Indigenous Elders. The project, “Bringing up Children Gran’s Way”, on which the presenter is the research advisor, was funded by AIATSIS. Aims Increase service quality Improve staff confidence, skills and satisfaction working with this population Promote the wellbeing of Indigenous families Acknowledge the significance of Elders and extended family networks. Methods Over 2006/07 the team used narrative and Indigenous methodologies, (e.g. yarning circles and the use of Indigenous research staff) to arrange and audio-record structured interviews with 19 Aboriginal Elders, on growing up and parenting. The participants were recruited by the Indigenous consultant and gave written consent, following ethical approval and information giving. The team immersed themselves in the material by repeated reading of the transcripts to note recurring themes in Elders’ narratives. Findings The recurring themes included the importance of cultural protocols and extended family; impacts of being ‘under the Act and stories of surviving change; culture, spiritualty and religion; trans-generational impacts; childrearing and the need to reconcile with Elders. Discussion The narratives show Elders resilience in the face of enduring impact of policies of genocide and assimilation. Clinicians need to approach their work with a deeper understanding of the diversity of clients’ social experience and cultural identity. Clinicians need to examine their own cultural assumptions about this population. Conclusion The dissemination of the knowledge and experience of Elders is a matter of social justice and crucial for the well-being of future generations and for improved service access.

Literacy, Place and Pedagogies of Possibility

How can teachers ensure a pedagogy of possibility underpinned by social justice, and what has literacy got to do with this? This book explores the positive synergies between critical literacy and place-conscious pedagogy. Through rich classroom research it introduces and demonstrates how a synthesis of insights from theories of space and place and literacy studies can underpin the design and enactment of culturally inclusive curriculum for diverse student communities, and illustrates how making place and space the objects of study provide productive resources for teachers to design enabling pedagogical practices that extend students' literate repertoires. The argument is that systematic study of and engagement with specific elements of place can enable students' academic learning and literacy.

Sovereignty, surveillance and speeding: Considering the Panopticon as a method of policing

This paper argues that the Panopticon is an accurate model for and illustration of policing and security methods in the modern society. Initially, I overview the theoretical concept of the Panopticon as a structure of perceived universal surveillance which facilitates automatic obedience in its subjects as identified by the theorists Jeremy Bentham and Michel Foucault. The paper subsequently moves to identify how the Panopticon, despite being a theoretical construct, is nevertheless instantiated to an extent through the prevalence of security cameras as a means of sovereignly regulating human conduct; speeding is an ordinary example. It could even be contended that increasing surveillance according to the model of the Panopticon would reduce the frequency of offences. However, in the final analysis the paper considers that even if adopting an approach based on the Panopticon is a more effective method of policing, it is not necessarily a more desirable one.

Can an Ecdysiast Fag speak the voice of transgender? Phoenix (un)rising and the assumptions in Re Kevin revisited

"Each night the men look so surprised I change my sex before their eyes Tell me if you can What makes a man a man" - Charles Aznavour, ‘What makes a man a man (Comme ils disent)’. In (the few) Western jurisdictions in which marriage remains a forensic artefact constructed on the basis of a man|woman binary, the anatomical and heteronormative assumptions which underlie the construction of marriage remain as artificial constructs which do not map well (if indeed at all) to current social, or even medical, approaches to gender. In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074, Justice Chisolm sought to recast the forensic ascription of sex against a broader set of criteria, expanding the range of sexually dimorphic anatomy used to determine sex for the purposes of marriage in Australia and incorporating observations of psycho-social gender-differentiation as factors relevant to the ultimate question for the Court — ‘What makes a man a man?’ Yet neither expansion is unproblematic. This article explores this fundamental forensic question against the background of Aznavour’s ‘Comme ils dissent’, in which the persona of un(e) stripteaseuse travesti struggles to answer precisely the same question. It concludes that Re Kevin might offer no more sophisticated an analysis of the lived reality of trans than Aznavour’s ecdysiast fag — not trans, but un travesti: "I shop and cook and sew a bit Though mum does too, I must admit I do it better."

Reframing social justice: Tensions experienced by novice teachers in an era of high-stakes accountability

This paper focuses on specific tensions in relation to social justice and education, addressing the research question: How do early career teachers within high poverty schools reconcile their beliefs about social justice in the light of recent pressures put upon them to produce test-based outcomes for their students? The paper is underpinned by research on teacher education targeting poverty (Cochran-Smith & Zeichner, 2005) as well as critical analyses of what is now counted as equity and social justice, and how these changes are measured and re-articulated (Lingard, Sellar and Savage 2014). The theoretical positioning of the paper situates equity/social justice as mediated by a range of social, cultural and organizational contexts within high poverty schools.