‘Only a pawn in their game’ : crime, risk and politics in the case of Robert Fardon

In 2003 Robert Fardon was the first prisoner to be detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the first of the new generation preventive detention laws enacted in Australia and directed at keeping sex offenders in prison or under supervision beyond the expiry of their sentences where a court decides, on the basis of psychiatric assessments, that unconditional release would create an unacceptable risk to the community. A careful examination of Fardon’s case shows the extent to which the administration of the regime was from the outset governed by politics and political calculation rather than the logic of risk management and community protection. In 2003 Robert Fardon was the first person detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (hereafter DPSOA), a newly enacted Queensland law aimed at the preventive detention of sex offenders. It was the first of a new generation of such laws introduced in Australia, now also in force in NSW, Western Australia and Victoria. The laws have been widely criticized by lawyers, academics and others (Keyzer and McSherry 2009; Edgely 2007). In this article I want to focus on the details of how the Queensland law was administered in Fardon’s case, he being perhaps the most well-known prisoner detained under such laws and certainly the longest held. It will show, I hope, that seemingly abstract rule of law principles invoked by other critics are not simply abstract: they afford a crucial practical safeguard against the corruption of criminal justice in which the ends both of community protection and of justice give way to opportunistic exploitation of ‘the mythic resonance of crime and punishment for electoral purposes’ (Scheingold 1998: 888).

Unspeakably present: The (un)acknowledgment of diverse sexuality and gender human rights in Australian youth justice systems

A number of international human rights frameworks protect the rights of young people in contact with the criminal justice system in states parties, including Australia. These frameworks inform youth justice policy in Australia’s jurisdictions. While the frameworks protect young people’s right to non-discrimination on the grounds of ‘race’, religion and political opinion, the rights of young people to non-discrimination on the grounds of sexuality and gender diversity are not explicitly protected. This is problematic given that lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ) young people appear over-represented in youth justice systems. This article argues that the exclusion of this group from human rights frameworks has an important flow-on effect: the marginalisation of the right of LGBTIQ young people to non-discrimination in policy and discourse that is informed by international human rights frameworks. After outlining the relevant frameworks, this article examines the evidence about LGBTIQ young people’s interactions with youth justice agencies, particularly police. The evidence indicates that the human rights of LGBTIQ young people are frequently breached in these interactions. We conclude by arguing that it is timely to consider how best to protect the human rights of LBGTIQ young people and keep their rights on the agenda.

Reinforcing stigma or delivering a fresh start: Bankruptcy and future engagement in the workforce

In Australia, bankruptcy retains a social stigma, as is often seen as a personal failing, and an indication that the individual cannot be trusted to meet their obligations. Official labelling and informal labelling reinforce this stigmatisation of bankruptcy in employment and business contexts. This occurs through legislation and policy that imposes restrictions on participation in some occupations on the grounds of bankruptcy, and imposes obligations on persons to disclose their bankruptcy to their employer. These restrictions and obligations that are varying in length and extent, both within industries and professions and across industries and professions, and appear to lack a coherent policy justification. Further, informal labelling is facilitated by the law providing for a permanent, publicly accessible record of bankruptcy, and failing to restrict the use of bankruptcy information in employment and business decision-making. This stigmatisation of bankruptcy inhibits the fresh start objective of bankruptcy, and is not supported by a strong correlation between bankruptcy and negative personal or other attributes. This article therefore argues that a review is needed to determine the circumstances in which there is a genuine policy justification for employment restrictions, and the appropriate length and scope of such restrictions. Reform of the Bankruptcy Act should also be considered. Possible areas for law reform including reducing the minimum period of bankruptcy; removing the permanency and/or public accessibility of the bankruptcy record; revising the language used in the Bankruptcy Act; and introducing a prohibition or restriction on the ability of employers to use bankruptcy status in employment decision making. Such changes would promote the fresh start objective of Australia’s bankruptcy system, and increase the likelihood that bankruptcy does not unfairly inhibit an individual’s ability to engage as an economic actor in Australian society and thereby improve their financial well-being.

Gender identity and brand incongruence: When in doubt, pursue masculinity

Gender identity is the extent to which an individual identifies with masculine or feminine personality traits. Sex roles in Western societies continue to evolve, so this research examines the developing relationship between gender identity and consumer responses to gendered branding. Grounded in self-congruency theory [Sirgy, M. J. (1982). Self-concept in consumer behavior: A critical review. Journal of Consumer Research, 9, 287–300], the present research reports an experiment that supports a congruence relationship between gender identity and brand response. Masculine consumers prefer masculine brands. The results also show incongruent brand rejection where masculine consumers react negatively to feminine brands although feminine consumers are more accepting of masculine brands. Further, the results suggest that gender identity is a more effective dimension for customer segmentation than biological sex. Overall, the results suggest that masculine brands are more effective than other gendered brand profiles for masculine, feminine, and androgynous consumers.

The corporate regulation of sexual harassment in Japan

Book Title in Japanese: 雇用・社会保障とジェンダー Chapter Title in Japanese: セクシャル・ハラスメント規制の企業化と男女平等政策への示唆

The right to a voice and the fight to be heard: The experience of being an ESL user in Australia

This paper focuses on the fundamental right to be heard, that is, the right to have one’s voice heard and listened to – to impose reception (Bourdieu, 1977). It focuses on the ways that non-mainstream English is heard and received in Australia, where despite public policy initiatives around equal opportunity, language continues to socially disadvantage people (Burridge & Mulder, 1998). English is the language of the mainstream and most people are monolingually English (Ozolins, 1993). English has no official status yet it remains dominant and its centrality is rarely challenged (Smolicz, 1995). This paper takes the position that the lack of language engagement in mainstream Australia leads to linguistic desensitisation. Writing in the US context where English is also the unofficial norm, Lippi-Green (1997) maintains that discrimination based on speech features or accent is commonly accepted and widely perceived as appropriate. In Australia, non-standard forms of English are often disparaged or devalued because they do not conform to the ‘standard’ (Burridge & Mulder, 1998). This paper argues that talk cannot be taken for granted: ‘spoken voices’ are critical tools for representing the self and negotiating and manifesting legitimacy within social groups (Miller, 2003). In multicultural, multilingual countries like Australia, the impact of the spoken voice, its message and how it is heard are critical tools for people seeking settlement, inclusion and access to facilities and services. Too often these rights are denied because of the way a person sounds. This paper reports a study conducted with a group that has been particularly vulnerable to ongoing ‘panics’ about language – international students. International education is the third largest revenue source for Australia (AEI, 2010) but has been beset by concerns from academics (Auditor-General, 2002) and the media about student language levels and falling work standards (e.g. Livingstone, 2004). Much of the focus has been high-stakes writing but with the ascendancy of project work in university assessment and the increasing emphasis on oracy, there is a call to recognise the salience of talk, especially among students using English as a second language (ESL) (Kettle & May, 2012). The study investigated the experiences of six international students in a Master of Education course at a large metropolitan university. It utilised data from student interviews, classroom observations, course materials, university policy documents and media reports to examine the ways that speaking and being heard impacted on the students’ learning and legitimacy in the course. The analysis drew on Fairclough’s (2003) model of the dialectical-relational Critical Discourse Analysis (CDA) to analyse the linguistic, discursive and social relations between the data texts and their conditions of production and interpretation, including the wider socio-political discourses on English, language difference, and second language use. The interests of the study were if and how discourses of marginalisation and discrimination manifested and if and how students recognised and responded to them pragmatically. Also how they juxtaposed with and/or contradicted the official rhetoric about diversity and inclusion. The underpinning rationale was that international students’ experiences can provide insights into the hidden politics and practices of being heard and afforded speaking rights as a second language speaker in Australia.

Book Review "Selling sex: a hidden history of prostitution", R. Frances, UNSW Press, Sydney, 2007

In the opening pages of Selling Sex we are introduced to 'Joy', a statue of a young female sex worker which stood in East Sydney for eighteen months during 1995- 1997. Following complaints by local residents, the statue was removed from public view and returned to its owner. Evidently, Joy was considered a reminder of the community's 'bad old days', when it was better known for prostitution than restaurants. In a nation in which almost every sizable community has proudly erected monuments to military men, the removal of Joy reveals much about labour and gender relations in Australia. For Frances, the removal of Joy is symbolic, our historical treatment of sex workers having parallels with our treatment of the convicts. This work sets out to give these women (male prostitutes do not figure in this history) a voice and break with the stereotypes of 'abandoned whores' or 'sad victims'. It also sets out to place the sex industry in the broader national and international context in which it has historically operated...

Accountability for good faith in commercial dealing: The Carter v Boehm legacy 250 years on

In common law jurisdictions such as England, Australia, Canada and New Zealand good faith in contracting has long been recognised in specific areas of the law such as insurance law and franchising, and more recently the implied duties of good faith and mutual trust and convenience in employment contracts have generated a considerable volume of case law. Outside of these areas of law that may be characterised as being strongly‘relational’ in character,the courts in common law jurisdictions have been reluctant to embrace a more universal application of good faith in contracting and performance. However increasingly there are cases which support the proposition that there is a common law duty of good faith of general application to all commercial contracts. Most important in this context is the recent decision of the Supreme Court of Canada in Bhasin v Hrynew.1 However, this matter is by no means resolved in all common law jurisdictions. This article looks at the recent case law and literature and at various legislative incursions including statutes, codes of conduct and regulations impacting good faith in commercial dealings.