Academic literature on the topic 'Prospectus writing Law and legislation Australia'

AbstractThe last decade or so has seen a fundamental shift in Aboriginal cultural heritage law in Australia. A number of subnational jurisdictions in Australia have undergone major reforms to their Aboriginal heritage legislation. Other subnational jurisdictions are currently in the reform process or have promised reform in coming years. We use the latest (and, at the time of writing, ongoing) process to reform Aboriginal heritage legislation in the state of New South Wales (NSW) to explore some of the legal issues and themes emanating from the Australian experience. The NSW example is a useful case study for thinking about how minority heritage regulation can not only serve broader social movements but also undercut some of its own possibilities. We argue that even law that is ostensibly in place to promote the control of communities over their own heritage can cause difficult balancing acts that may default to a dependency path and effectively detract from its own projected goals.

A lack of uniformity in laws regulating professionals such as auditors and lawyers in relation to defective prospectuses exists across nations around the world. Securities legislation of some jurisdictions clearly imposes criminal liabilities for defective prospectuses on professionals along with directors and promoters of the issuer of securities. But the laws of some other countries are ambiguous in this regard. Such an ambiguity is present in the securities legislation of the United States, Australia and Canada. Their legislation does not categorically name the persons who should be criminally liable for a defective prospectus; nonetheless auditors and lawyers are sometimes caught by virtue of judicial interpretations of those vague legal provisions. Even though they could be on the hook under such interpretations, legislation provides a wide range of defences that facilitate escaping liabilities by offenders at the expense of the integrity of the market. Regarding sanctions, although the term of imprisonment is identical in all these three jurisdictions, pecuniary penalties significantly vary after the recent reforms triggered by some spectacular corporate bankruptcy taking place especially in the U.S. and Australia. Most importantly, the post-Enron reforms explicitly amend the laws governing secondary securities markets, and therefore their application to defective prospectuses is questionable except for the Canadian reforms. If the post-Enron reforms do not really touch the prospectus liability regimes in the U.S. and Australia, it can be said that the lawmakers have ignored their primary securities markets. If this is so, it would be an unwise policy to wait for an Enron-type disaster to occur in the IPO market for stimulus to initiate reforms addressing professional malpractices in the preparation of prospectuses. If not, the law should make it clear before it is too late.

This article analyses the early years of the operation of copyright legislation in the colony of Victoria, Australia. The Copyright Act 1869 (Vic) was introduced into a thriving but volatile colonial literary marketplace. The law was based almost wholly on the UK law at the time, existing in a very different environment. This article notes that despite the rhetoric of the protection of the right of authors as an aim of the law, the effect was something quite different. We examine the use of copyright by some key players in that colonial market, both publishers and authors. That analysis reveals that the prophetic words of George Higinbotham, that the law was not for the protection of the author, but the publisher, can be demonstrated to be true. This is evident both in the implementation of the law itself and in a number of inconsistencies in its operation. We conclude that, despite public and parliamentary rhetoric drawing on the romantic conception of the author as creator, the law’s conception of the author as proprietor offered little protection to local Australian authors writing new literature for a new country.

Introduction For some time now there has been a strong critical framework that identifies a significant shift in the politics of homosexuality in the Anglo-oriented West over the last fifteen to twenty years. In this article I draw on this framework to describe the current moment in the Australian cultural politics of homosexuality. I focus on the issue of same-sex marriage as a key indicator of the currently emerging era. I then turn to two Australian texts about marriage that were produced in “the period before” this time, with the aim of recovering what has been partially lost from current formations of GLBT politics and from available memories of the past. Critical Histories Lisa Duggan’s term “the new homonormativity” is the frame that has gained widest currency among writers who point to the incorporation of certain versions of homosexuality into the neo-liberal (U.S.) mainstream. She identifies a sexual politics that “does not contest dominant heteronormative assumptions and institutions, but upholds and sustains them, while promising the possibility of a demobilized gay constituency and a privatized, depoliticized gay culture anchored in domesticity and consumption” (50). More recently, writing of the period inaugurated by the so-called “war on terror” and following Duggan, Jasbir Puar has introduced the term “homonationalism” to refer to “a collusion between homosexuality and American nationalism that is generated both by national rhetorics of patriotic inclusion and by gay and queer subjects themselves” (39). Damien Riggs adds the claims of Indigenous peoples in ongoing colonial contexts to the ground from which contemporary GLBT political claims can be critiqued. He concludes that while “queer people” will need to continue to struggle for rights, it is likely that cultural intelligibility “as a subject of the nation” will be extended only to those “who are established through the language of the nation (i.e., one that is founded upon the denial of colonial violence)” (97). Most writers who follow these kinds of critical analyses refer to the discursive place of homosexual couples and families, specifically marriage. For Duggan it was the increasing focus on “full gay access to marriage and military service” that defined homonormativity (50). Puar allows for a diversity of meanings of same-sex marriage, but claims that for many it is “a demand for reinstatement of white privileges and rights—rights of property and inheritance in particular” (29; see also Riggs 66–70). Of course not all authors locate the political focus on same-sex marriage and its effects as a conservative affair. British scholar Jeffrey Weeks stresses what “we” have gained and celebrates the rise of the discourse of human rights in relation to sexuality. “The very ordinariness of recognized same-sex unions in a culture which until recently cast homosexuality into secret corners and dark whispers is surely the most extraordinary achievement of all” (198), he writes. Australian historian Graham Willett takes a similar approach in his assessment of recent Australian history. Noting the near achievement of “the legal equality agenda for gay people” (“Homos” 187), he notes that “the gay and lesbian movement went on reshaping Australian values and culture and society through the Howard years” (193). In his account it did this in spite of, and untainted by, the dominance of Howard's values and programs. The Howard period was “littered with episodes of insult and discrimination … [as the] government tried to stem the tide of gay, lesbian and transgender rights that had been flowing so strongly since 1969”, Willett writes (188). My own analysis of the Howard years acknowledges the significant progress made in law reform relating to same-sex couples and lesbian and gay parents but draws attention to its mutual constitution with the dominance of the white, patriarchal, neo-liberal and neo-conservative ideologies which dominated social and political life (2013 forthcoming). I argue that the costs of reform, fought for predominantly by white and middle class lesbians and gay men deploying homonormative discourses, included the creation of new identities—single lesbians and gays whose identity did not fit mainstream notions, non-monogamous couples and bad mothers—which were positioned on the illegitimate side of the newly enfranchised. Further the success of the reforms marginalised critical perspectives that are, for many, necessary tools for survival in socially conservative neoliberal times. Same-Sex Marriage in Australia The focus on same-sex marriage in the Australian context was initiated in April 2004 by then Prime Minister Howard. An election was looming and two same-sex couples were seeking recognition of their Canadian marriages through the courts. With little warning, Howard announced that he would amend the Federal Marriage Act to specify that marriage could only take place between a man and a woman. His amendment also prevented the recognition of same-sex marriages undertaken overseas. Legislation was rushed through the parliament in August of that year. In response, Australian Marriage Equality was formed in 2004 and remains at the centre of the GLBT movement. Since that time political rallies in support of marriage equality have been held regularly and the issue has become the key vehicle through which gay politics is understood. Australians across the board increasingly support same-sex marriage (over 60% in 2012) and a growing majority of gay and lesbian people would marry if they could (54% in 2010) (AME). Carol Johnson et al. note that while there are some critiques, most GLBT people see marriage “as a major equality issue” (Johnson, Maddison and Partridge 37). The degree to which Howard’s move changed the terrain of GLBT politics cannot be underestimated. The idea and practice of (non-legal) homosexual marriage in Australia is not new. And some individuals, publicly and privately, were calling for legal marriage for same-sex couples before 2004 (e.g. Baird, “Kerryn and Jackie”). But before 2004 legal marriage did not inspire great interest among GLBT people nor have great support among them. Only weeks before Howard’s announcement, Victorian legal academic and co-convenor of the Victorian Gay & Lesbian Rights Lobby Miranda Stewart concluded an article about same-sex relationship law reform in Victoria with a call to “begin the debate about gay marriage” (80, emphasis added). She noted that the growing number of Australian couples married overseas would influence thinking about marriage in Australia. She also asked “do we really want to be part of that ‘old edifice’ of marriage?” (80). Late in 2003 the co-convenors of the NSW Gay and Lesbian Rights Lobby declared that “many members of our community are not interested in marriage” and argued that there were more pressing, and more practical, issues for the Lobby to be focused on (Cerise and McGrory 5). In 2001 Jenni Millbank and Wayne Morgan, two leading legal academics and activists in the arena of same-sex relationship politics in Australia, wrote that “The notion of ‘same-sex marriage’ is quite alien to Australia” (Millbank and Morgan, 295). They pointed to the then legal recognition of heterosexual de facto relationships as the specific context in Australia, which meant that marriage was not viewed as "paradigmatic" (296). In 1998 a community consultation conducted by the Equal Opportunity Commission in Victoria found that “legalising marriage for same-sex couples did not enjoy broad based support from either the community at large or the gay and lesbian community” (Stewart 76). Alongside this general lack of interest in marriage, from the early-mid 1990s gay and lesbian rights groups in each state and territory began to think about, if not campaign for, law reform to give same-sex couples the same entitlements as heterosexual de facto couples. The eventual campaigns differed from state to state, and included moments of high profile public activity, but were in the main low key affairs that met with broadly sympathetic responses from state and territory ALP governments (Millbank). The previous reforms in every state that accorded heterosexual de facto couples near equality with married couples meant that gay and lesbian couples in Australia could gain most of the privileges available to heterosexual couples without having to encroach on the sacred territory (and federal domain) of marriage. In 2004 when Howard announced his marriage bill only South Australia had not reformed its law. Notwithstanding these reforms, there were matters relating to lesbian and gay parenting that remained in need of reform in nearly every jurisdiction. Further, Howard’s aggressive move in 2004 had been preceded by his dogged refusal to consider any federal legislation to remove discrimination. But in 2008 the new Rudd government enacted legislation to remove all discrimination against same-sex couples in federal law, with marriage and (ironically) the lack of anti-discrimination legislation on the grounds of sexuality the exceptions, and at the time of writing most states have made or will soon implement the reforms that give full lesbian and gay parenting rights. In his comprehensive account of gay politics from the 1950s onwards, published in 2000, Graham Willett does not mention marriage at all, and deals with the moves to recognise same-sex relationships in one sixteen line paragraph (Living 249). Willett’s book concludes with the decriminalisation of sex between men across every state of Australia. It was written just as the demand for relationship reform was becoming the central issue of GLBT politics. In this sense, the book marks the end of one era of homosexual politics and the beginning of the next which, after 2004, became organised around the desire for marriage. This understanding of the recent gay past has become common sense. In a recent article in the Adelaide gay paper blaze a young male journalist wrote of the time since the early 1970s that “the gay rights movement has shifted from the issue of decriminalising homosexuality nationwide to now lobbying for full equal rights for gay people” (Dunkin 3). While this (reductive and male-focused) characterisation is not the only one possible, I simply note that this view of past and future progress has wide currency. The shift of attention in this period to the demand for marriage is an intensification and narrowing of political focus in a period of almost universal turn by state and federal governments to neoliberalism and an uneven turn to neo-conservatism, directions which have detrimental effects on the lives of many people already marginalised by discourses of sexuality, race, class, gender, migration status, (dis)ability and so on. While the shift to the focus on marriage from 2004 might be understood as the logical final step in gaining equal status for gay and lesbian relationships (albeit one with little enthusiasm from the GLBT political communities before 2004), the initiation of this shift by Prime Minister Howard, with little preparatory debate in the LGBT political communities, meant that the issue emerged onto the Australian political agenda in terms defined by the (neo)conservative side of politics. Further, it is an example of identity politics which, as Lisa Duggan has observed in the US case, is “increasingly divorced from any critique of global capitalism” and settles for “a stripped-down equality, paradoxically imagined as compatible with persistent overall inequality” (xx). Brides before Marriage In the last part of this article I turn to two texts produced early in 1994—an activist document and an ephemeral performance during the Sydney Gay and Lesbian Mardi Gras parade. If we point only to the end of the era of (de)criminalisation, then the year 1997, when the last state, Tasmania, decriminalised male homosex, marks the shift from one era of the regulation of homosexuality to another. But 1994 bore the seeds of the new era too. Of course attempts to identify a single year as the border between one era and the next are rhetorical devices. But some significant events in 1994 make it a year of note. The Australian films Priscilla: Queen of the Desert and The Sum of Us were both released in 1994, marking particular Australian contributions to the growing presence of gay and lesbian characters in Western popular culture (e.g. Hamer and Budge). 1994 was the UN International Year of the Family (IYF) and the Sydney Gay and Lesbian Mardi Gras chose the theme “We are Family” and published endorsement from both Prime Minister Keating and the federal opposition leader John Hewson in their program. In 1994 the ACT became the first Australian jurisdiction to pass legislation that recognised the rights and entitlements of same-sex couples, albeit in a very limited and preliminary form (Millbank 29). The NSW Gay and Lesbian Rights Lobby's (GLRL) 1994 discussion paper, The Bride Wore Pink, can be pinpointed as the formal start to community-based activism for the legal recognition of same-sex relationships. It was a revision of an earlier version that had been the basis for discussion among (largely inner Sydney) gay and lesbian communities where there had been lively debate and dissent (Zetlein, Lesbian Bodies 48–57). The 1994 version recommended that the NSW government amend the existing definition of de facto in various pieces of legislation to include lesbian and gay relationships and close non-cohabiting interdependent relationships as well. This was judged to be politically feasible. In 1999 NSW became the first state to implement wide ranging reforms of this nature although these were narrower than called for by the GLRL, “including lesser number of Acts amended and narrower application and definition of the non-couple category” (Millbank 10). My concern here is not with the politics that preceded or followed the 1994 version of The Bride, but with the document itself. Notwithstanding its status for some as a document of limited political vision, The Bride bore clear traces of the feminist and liberationist thinking, the experiences of the AIDS crisis in Sydney, and the disagreements about relationships within lesbian and gay communities that characterised the milieu from which it emerged. Marriage was clearly rejected, for reasons of political impossibility but also in light of a list of criticisms of its implication in patriarchal hierarchies of relationship value (31–2). Feminist analysis of relationships was apparent throughout the consideration of pros and cons of different legislative options. Conflict and differences of opinion were evident. So was humour. The proliferation of lesbian and gay commitment ceremonies was listed as both a pro and a con of marriage. On the one hand "just think about the prezzies” (31); on the other, “what will you wear” (32). As well as recommending change to the definition of de facto, The Bride recommended the allocation of state funds to consider “the appropriateness or otherwise of bestowing entitlements on the basis of relationships,” “the focusing on monogamy, exclusivity and blood relations” and the need for broader definitions of “relationships” in state legislation (3). In a gesture towards a political agenda beyond narrowly defined lesbian and gay interests, The Bride also recommended that “the lesbian and gay community join together with other groups to lobby for the removal of the cohabitation rule in the Social Security Act 1991” (federal legislation) (34). This measure would mean that the payment of benefits and pensions would not be judged in the basis of a person’s relationship status. While these radical recommendations may not have been energetically pursued by the GLRL, their presence in The Bride records their currency at the time. The other text I wish to excavate from 1994 is the “flotilla of lesbian brides” in the 1994 Sydney Gay and Lesbian Mardi Gras. These lesbians later appeared in the April 1994 issue of Sydney lesbian magazine Lesbians on the Loose, and they have a public afterlife in a photo by Sydney photographer C Moore Hardy held in the City of Sydney archives (City of Sydney). The group of between a dozen and twenty lesbians (it is hard to tell from the photos) was dressed in waist-to-ankle tulle skirts, white bras and white top hats. Many wore black boots. Unshaven underarm hair is clearly visible. Many wore long necklaces around their necks and the magazine photo makes clear that one bride has a black whip tucked into the band of her skirt. In an article about lesbians and legal recognition of their relationships published in 1995, Sarah Zetlein referred to the brides as “chicks in white satin” (“Chicks”). This chick was a figure that refused the binary distinction between being inside and outside the law, which Zetlein argued characterised thinking about the then emerging possibilities of the legal recognition of lesbian (and gay) relationships. Zetlein wrote that “the chick in white satin”: Represents a politics which moves beyond the concerns of one’s own identity and demands for inclusion to exclusion to a radical reconceptualisation of social relations. She de(con)structs and (re) constructs. … The chick in white satin’s resistance often lies in her exposure and manipulation of her regulation. It is not so much a matter of saying ‘no’ to marriage outright, or arguing only for a ‘piecemeal’ approach to legal relationship regulation, or lobbying for de facto inclusion as was recommended by The Bride Wore Pink, but perverting the understanding of what these legally-sanctioned sexual, social and economic relationships mean, hence undermining their shaky straight foundations.(“Chicks” 56–57) Looking back to 1994 from a time nearly twenty years later when (straight) lesbian brides are celebrated by GLBT culture, incorporated into the mainstream and constitute a market al.ready anticipated by “the wedding industrial complex” (Ingraham), the “flotilla of lesbian brides” can be read as a prescient queer negotiation of their time. It would be a mistake to read the brides only in terms of a nascent interest in legally endorsed same-sex marriage. In my own limited experience, some lesbians have always had a thing for dressing up in wedding garb—as brides or bridesmaids. The lesbian brides marching group gave expression to this desire in queer ways. The brides were not paired into couples. Zetlein writes that “the chick in white satin … [has] a veritable posse of her girlfriends with her (and they are all the brides)” (“Chicks” 63, original emphasis). Their costumes were recognisably bridal but also recognisably parodic and subverting; white but hardly innocent; the tulle and bras were feminine but the top hats were accessories conventionally worn by the groom and his men; the underarm hair a sign of feminist body politics. The whip signalled the lesbian underground sexual culture that flourished in Sydney in the early 1990s (O’Sullivan). The black boots were both lesbian street fashion and sensible shoes for marching! Conclusion It would be incorrect to say that GLBT politics and lesbian and gay couples who desire legal marriage in post-2004 Australia bear no trace of the history of ambivalence, critique and parody of marriage and weddings that have come before. The multiple voices in the 2011 collection of “Australian perspectives on same-sex marriage” (Marsh) put the lie to this claim. But in a climate where our radical pasts are repeatedly forgotten and lesbian and gay couples increasingly desire legal marriage, the political argument is hell-bent on inclusion in the mainstream. There seems to be little interest in a dance around the margins of inclusion/exclusion. I add my voice to the concern with the near exclusive focus on marriage and the terms on which it is sought. It is not a liberationist politics to which I have returned in recalling The Bride Wore Pink and the lesbian brides of the 1994 Gay and Lesbian Mardi Gras, but rather an attention to the differences in the diverse collective histories of non-heterosexual politics. The examples I elaborate are hardly cases of radical difference. But even these instances might remind us that “we” have never been on a single road to equality: there may be incommensurable differences between “us” as much as commonalities. They also remind that desires for inclusion and recognition by the state should be leavened with a strong dose of laughter as well as with critical political analysis. References Australian Marriage Equality (AME). “Public Opinion Nationally.” 22 Oct. 2012. ‹http://www.australianmarriageequality.com/wp/who-supports-equality/a-majority-of-australians-support-marriage-equality/›. Baird, Barbara. “The Politics of Homosexuality in Howard's Australia.” Acts of Love and Lust: Sexuality in Australia from 1945-2010. Eds. Lisa Featherstone, Rebecca Jennings and Robert Reynolds. Newcastle: Cambridge Scholars Press, 2013 (forthcoming). —. “‘Kerryn and Jackie’: Thinking Historically about Lesbian Marriages.” Australian Historical Studies 126 (2005): 253–271. Butler, Judith. “Is Kinship Always Already Heterosexual?” Differences 13.1 (2002): 14–44. Cerise, Somali, and Rob McGrory. “Why Marriage Is Not a Priority.” Sydney Star Observer 28 Aug. 2003: 5. City of Sydney Archives [061\061352] (C. Moore Hardy Collection). ‹http://www.dictionaryofsydney.org//image/40440?zoom_highlight=c+moore+hardy›. Duggan Lisa. The Twilight of Equality?: Neoliberalism, Cultural politics, and the Attack on Democracy. Boston: Beacon Press, 2003. Dunkin, Alex. “Hunter to Speak at Dr Duncan Memorial.” blaze 290 (August 2012): 3. Hamer, Diane, and Belinda Budege, Eds. The Good Bad And The Gorgeous: Popular Culture's Romance With Lesbianism. London: Pandora, 1994. Ingraham, Chrys. White Weddings: Romancing Heterosexuality in Popular Culture, 2nd ed. New York: Routledge, 2008. Johnson, Carol, and Sarah Maddison, and Emma Partridge. “Australia: Parties, Federalism and Rights Agendas.” The Lesbian and Gay Movement and the State. Ed. Manon Tremblay, David Paternotte and Carol Johnson. Surrey: Ashgate, 2011. 27–42. Lesbian and Gay Legal Rights Service. The Bride Wore Pink, 2nd ed. Sydney: GLRL, 1994. Marsh, Victor, ed. Speak Now: Australian Perspectives on Same-Sex Marriage. Melbourne: Clouds of Mgaellan, 2011. Millbank Jenni, “Recognition of Lesbian and Gay Families in Australian Law—Part one: Couples.” Federal Law Review 34 (2006): 1–44Millbank, Jenni, and Wayne Morgan. “Let Them Eat Cake and Ice Cream: Wanting Something ‘More’ from the Relationship Recognition Menu.” Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law. Ed. Robert Wintermute and Mads Andenaes. Portland: Hart Publishing, 2001. 295–316. O'Sullivan Kimberley. “Dangerous Desire: Lesbianism as Sex or Politics.” Ed. Jill Julius Matthews. Sex in Public: Australian Sexual Cultures Sydney: Allen and Unwin, 1997. 120–23. Puar, Jasbir K. Terrorist Assemblages: Homonationalism in Queer Times. Durham: Duke UP, 2007 Stewart, Miranda, “It’s a Queer Thing: Campaigning for Equality and Social Justice for Lesbians and Gay Men”. Alternative Law Journal 29.2 (April 2004): 75–80. Walker, Kristen. “The Same-Sex Marriage Debate in Australia.” The International Journal of Human Rights 11.1–2 (2007): 109–130. Weeks, Jeffrey. The World We Have Won: The Remaking of Erotic and Intimate Life. Abindgdon: Routledge, 2007. Willett, Graham. Living Out Loud: A History of Gay and Lesbian Activism in Australia. Sydney: Allen & Unwin, 2000. Willett, Graham. “Howard and the Homos.” Social Movement Studies 9.2 (2010): 187–199. Zetlein, Sarah. Lesbian Bodies Before the Law: Intimate Relations and Regulatory Fictions. Honours Thesis, University of Adelaide, 1994. —. “Lesbian Bodies before the Law: Chicks in White Satin.” Australian Feminist Law Journal 5 (1995): 48–63.

The first two months of 2021 saw Google and Facebook ‘go dark’ in terms of news content on the Australia versions of their platforms. In January, Google ran a so-called “experiment” which removed or demoted current news in the search results available to a segment of Australian users. While Google was only darkened for some, in February news on Facebook went completely dark, with the company banning all news content and news sharing for users within Australian. Both of these instances of going dark occurred because of the imminent threat these platforms faced from the News Media Bargaining Code legislation that was due to be finalised by the Australian parliament. This article examines how both Google and Facebook responded to the draft Code, focussing on their threats to go dark, and the extent to which those threats were carried out. After exploring the context which produced the threats of going dark, this article looks at their impact, and how the Code was reshaped in light of those threats before it was finally legislated in early March 2021. Most importantly, this article outlines why Google and Facebook were prepared to go dark in Australia, and whether they succeeded in trying to prevent Australia setting the precedent of national governments dictating the terms by which digital platforms should pay for news content. From the Digital Platforms Inquiry to the Draft Code In July 2019, the Australian Treasurer released the Digital Platforms Inquiry Final Report which had been prepared by the Australian Competition and Consumer Commission (ACCC). It outlined a range of areas where Australian law, policies and practices were not keeping pace with the realities of a digital world of search giants, social networks, and streaming media. Analysis of the submissions made as part of the Digital Platforms Inquiry found that the final report was “primarily framed around the concerns of media companies, particularly News Corp Australia, about the impact of platform companies’ market dominance of content distribution and advertising share, leading to unequal economic bargaining relationships and the gradual disappearance of journalism jobs and news media publishers” (Flew et al. 13). As such, one of the most provocative recommendations made was the establishment of a new code that would “address the imbalance in the bargaining relationship between leading digital platforms and news media businesses” (Australian Competition and Consumer Commission, Digital Platforms Inquiry 16). The ACCC suggested such a code would assist Australian news organisations of any size in negotiating with Facebook, Google and others for some form of payment for news content. The report was released at a time when there was a greatly increased global appetite for regulating digital platforms. Thus the battle over the Code was watched across the world as legislation that had the potential to open the door for similar laws in other countries (Flew and Wilding). Initially the report suggested that the digital giants should be asked to develop their own codes of conduct for negotiating with news organisations. These codes would have then been enforced within Australia if suitably robust. However, after months of the big digital platforms failing to produce meaningful codes of their own, the Australian government decided to commission their own rules in this arena. The ACCC thus prepared the draft legislation that was tabled in July 2020 as the Australian News Media Bargaining Code. According to the ACCC the Code, in essence, tried to create a level playing field where Australian news companies could force Google and Facebook to negotiate a ‘fair’ payment for linking to, or showing previews of, their news content. Of course, many commentators, and the platforms themselves, retorted that they already bring significant value to news companies by referring readers to news websites. While there were earlier examples of Google and Facebook paying for news, these were largely framed as philanthropy: benevolent digital giants supporting journalism for the good of democracy. News companies and the ACCC argued this approach completely ignored the fact that Google and Facebook commanded more than 80% of the online advertising market in Australia at that time (Meade, “Google, Facebook and YouTube”). Nor did the digital giants acknowledge their disruptive power given the bulk of that advertising revenue used to flow to news companies. Some of the key features of this draft of the Code included (Australian Competition and Consumer Commission, “News Media Bargaining Code”): Facebook and Google would be the (only) companies initially ‘designated’ by the Code (i.e. specific companies that must abide by the Code), with Instagram included as part of Facebook. The Code applied to all Australian news organisations, and specifically mentioned how small, regional, and rural news media would now be able to meaningfully bargain with digital platforms. Platforms would have 11 weeks after first being contacted by a news organisation to reach a mutually negotiated agreement. Failure to reach agreements would result in arbitration (using a style of arbitration called final party arbitration which has both parties present a final offer or position, with an Australian arbiter simply choosing between the two offers in most cases). Platforms were required to give 28 days notice of any change to their algorithms that would impact on the ways Australian news was ranked and appeared on their platform. Penalties for not following the Code could be ten million dollars, or 10% of the platform’s annual turnover in Australia (whichever was greater). Unsurprisingly, Facebook, Google and a number of other platforms and companies reacted very negatively to the draft Code, with their formal submissions arguing: that the algorithm change notifications would give certain news companies an unfair advantage while disrupting the platforms’ core business; that charging for linking would break the underlying free nature of the internet; that the Code overstated the importance and reach of news on each platform; and many other objections were presented, including strong rejections of the proposed model of arbitration which, they argued, completely favoured news companies without providing any real or reasonable limit on how much news organisations could ask to be paid (Google; Facebook). Google extended their argument by making a second submission in the form of a report with the title ‘The Financial Woes of News Publishers in Australia’ (Shapiro et al.) that argued Australian journalism and news was financially unsustainable long before digital platforms came along. However, in stark contrast the Digital News Report: Australia 2020 found that Google and Facebook were where many Australians found their news; in 2020, 52% of Australians accessed news on social media (up from 46% the year before), with 39% of Australians getting news from Facebook, and that number jumping to 49% when specifically focusing on news seeking during the first COVID-19 pandemic peak in April 2021 (Park et al.). The same report highlighted that 43% of people distrust news found on social media (with a further 29% neutral, and only 28% of people explicitly trusting news found via social media). Moreover, 64% of Australians were concerned about misinformation online, and of all the platforms mentioned in the survey, respondents were most concerned about Facebook as a source of misinformation, with 36% explicitly indicating this was the place they were most concerned about encountering ‘fake news’. In this context Facebook and Google battled the Code by launching a public relations campaigns, appealing directly to Australian consumers. Google Drives a Bus Across Australia Google’s initial response to the draft Code was a substantial public relations campaign which saw the technology company advocating against the Code but not necessarily the ideas behind it. Google instead posited their own alternative way of paying for journalism in Australia. On the main Google search landing page, the usually very white surrounds of the search bar included the text “Supporting Australian journalism: a constructive path forward” which linked to a Google page outlining their version of a ‘Fair Code’. Popup windows appeared across many of Google’s services and apps, noting Google “are willing to pay to support journalism”, with a button labelled ‘Hear our proposal’. Figure 1: Popup notification on Google Australia directing users to Google’s ‘A Fair Code’ proposal rebutting the draft Code. (Screen capture by author, 29 January 2021) Google’s popups and landing page links were visible for more than six months as the Code was debated. In September 2020, a Google blog post about the Code was accompanied by a YouTube video campaign featuring Australia comedian Greta Lee Jackson (Google Australia, Google Explains Arbitration). Jackson used the analogy of Google as a bus driver, who is forced to pay restaurants for delivering customers to them, and then pay part of the running costs of restaurants, too. The video reinforced Google’s argument that the draft Code was asking digital platforms to pay potentially enormous costs for news content without acknowledging the value of Google bringing readers to the news sites. However, the video opened with the line that “proposed laws can be confusing, so I'll use an analogy to break it down”, setting a tone that would seem patronising to many people. Moreover, the video, and Google’s main argument, completely ignored the personal data Google receives every time a user searches for, or clicks on, a news story via Google Search or any other Google service. If Google’s analogy was accurate, then the bus driver would be going through every passenger’s bag while they were on the bus, taking copies of all their documents from drivers licenses to loyalty cards, keeping a record of every time they use the bus, and then using this information to get advertisers to pay for a tailored advertisement on the back of the seat in front of every passenger, every time they rode the bus. Notably, by the end of March 2021, the video had only received 10,399 views, which suggests relatively few people actually clicked on it to watch. In early January 2021, at the height of the debate about the Code, Google ran what they called “an experiment” which saw around 1% of Australian users suddenly only receive “older or less relevant content” when searching for news (Barnet, “Google’s ‘Experiment’”). While ostensibly about testing options for when the Code became law, the unannounced experiment also served as a warning shot. Google very effectively reminded users and politicians about their important role in determining which news Australian users find, and what might happen if Google darkened what they returned as news results. On 21 January 2021, Mel Silva, the Managing Director and public face of Google in Australia and New Zealand gave public testimony about the company’s position before a Senate inquiry. Silva confirmed that Google were indeed considering removing Google Search in Australia altogether if the draft Code was not amended to address their key concerns (Silva, “Supporting Australian Journalism: A Constructive Path Forward An Update on the News Media Bargaining Code”). Google’s seemingly sudden escalation in their threat to go dark led to articles such as a New York Times piece entitled ‘An Australia with No Google? The Bitter Fight behind a Drastic Threat’ (Cave). Google also greatly amplified their appeal to the Australian public, with a video featuring Mel Silva appearing frequently on all Google sites in Australia to argue their position (Google Australia, An Update). By the end of March 2021, Silva’s video had been watched more than 2.2 million times on YouTube. Silva’s testimony, video and related posts from Google all characterised the Code as: breaking “how Google search works in Australia”; creating a world where links online are paid for and thus both breaking Google and “undermin[ing] how the web works”; and saw Google offer their News Showcase as a viable alternative that, in Google’s view, was “a fair one” (Silva, “Supporting Australian Journalism”). Google emphasised submissions about the Code which backed their position, including World Wide Web inventor Tim Berners-Lee who agreed that the idea of charging for links could have a more wide-reaching impact, challenging the idea of a free web (Leaver). Google also continued to release their News Showcase product in other parts of the world. They emphasised that there were existing arrangements for Showcase in Australia, but the current regulatory uncertainty meant it was paused in Australia until the debates about the Code were resolved. In the interim, news media across Australia, and the globe, were filled with stories speculating what an Australia would look like if Google went completely dark (e.g. Cave; Smyth). Even Microsoft weighed in to supporting the Code and offer their search engine Bing as a viable alternative to fill the void if Google really did go dark (Meade, “Microsoft’s Bing”). In mid-February, the draft Code was tabled in Australian parliament. Many politicians jumped at the chance to sing the Code’s praises and lament the power that Google and Facebook have across various spheres of Australian life. Yet as these speeches were happening, the Australian Treasurer Josh Frydenberg was holding weekend meetings with executives from Google and Facebook, trying to smooth the path toward the Code (Massola). In these meetings, a number of amendments were agreed to, including the Code more clearly taking in to account any existing deals already on the table before it became law. In these meetings the Treasurer made in clear to Google that if the deals done prior to the Code were big enough, he would consider not designating Google under the Code, which in effect would mean Google is not immediately subject to it (Samios and Visentin). With that concession in hand Google swiftly signed deals with over 50 Australian news publishers, including Seven West Media, Nine, News Corp, The Guardian, the ABC, and some smaller publishers such as Junkee Media (Taylor; Meade, “ABC Journalism”). While the specific details of these deals were not made public, the deals with Seven West Media and Nine were both reported to be worth around $30 million Australian dollars (Dudley-Nicholson). In reacting to Google's deals Frydenberg described them as “generous deals, these are fair deals, these are good deals for the Australian media businesses, deals that they are making off their own bat with the digital giants” (Snape, “‘These Are Good Deals’”). During the debates about the Code, Google had ultimately ensured that every Australian user was well aware that Google was, in their words, asking for a “fair” Code, and before the Code became law even the Treasurer was conceding that Google’s was offering a “fair deal” to Australian news companies. Facebook Goes Dark on News While Google never followed through on their threat to go completely dark, Facebook took a very different path, with a lot less warning. Facebook’s threat to remove all news from the platform for users in Australia was not made explicit in their formal submissions the draft of the Code. However, to be fair, Facebook’s Managing Director in Australia and New Zealand Will Easton did make a blog post at the end of August 2020 in which he clearly stated: “assuming this draft code becomes law, we will reluctantly stop allowing publishers and people in Australia from sharing local and international news on Facebook and Instagram” (Easton). During the negotiations in late 2020 Instagram was removed as an initial target of the Code (just as YouTube was not included as part of Google) along with a number of other concessions, but Facebook were not sated. Yet Easton’s post about removing news received very little attention after it was made, and certainly Facebook made no obvious attempt to inform their millions of Australian users that news might be completely blocked. Hence most Australians were shocked when that was exactly what Facebook did. Facebook’s power has, in many ways, always been exercised by what the platform’s algorithms display to users, what content is most visible and equally what content is made invisible (Bucher). The morning of Wednesday, 17 February 2021, Australian Facebook users awoke to find that all traditional news and journalism had been removed from the platform. Almost all pages associated with news organisations were similarly either disabled or wiped clean, and that any attempt to share links to news stories was met with a notification: “this post can’t be shared”. The Australian Prime Minister Scott Morrison reacted angrily, publicly lamenting Facebook’s choice to “unfriend Australia”, adding their actions were “as arrogant as they were disappointing”, vowing that Australia would “not be intimidated by big tech” (Snape, “Facebook Unrepentant”). Figure 2: Facebook notification appearing when Australians attempted to share news articles on the platform. (Screen capture by author, 20 February 2021) Facebook’s news ban in Australia was not limited to official news pages and news content. Instead, their ban initially included a range of pages and services such as the Australian Bureau of Meteorology, emergency services pages, health care pages, hospital pages, services providing vital information about the COVID-19 pandemic, and so forth. The breadth of the ban may have been purposeful, as one of Facebook’s biggest complaints was that the Code defined news too broadly (Facebook). Yet in the Australian context, where the country was wrestling with periodic lockdowns and the Coronavirus pandemic on one hand, and bushfires and floods on the other, the removal of these vital sources of information showed a complete lack of care or interest in Australian Facebook users. Beyond the immediate inconvenience of not being able to read or share news on Facebook, there were a range of other, immediate, consequences. As Barnet, amongst others, warned, a Facebook with all credible journalism banned would almost certainly open the floodgates to a tide of misinformation, with nothing left to fill the void; it made Facebook’s “public commitment to fighting misinformation look farcical” (Barnet, “Blocking Australian News”). Moreover, Bossio noted, “reputational damage from blocking important sites that serve Australia’s public interest overnight – and yet taking years to get on top of user privacy breaches and misinformation – undermines the legitimacy of the platform and its claimed civic intentions” (Bossio). If going dark and turning off news in Australia was supposed to win the sympathy of Australian Facebook users, then the plan largely backfired. Yet as with Google, the Australian Treasurer was meeting with Mark Zuckerberg and Facebook executives behind closed doors, which did eventually lead to changes before the Code was finally legislated (Massola). Facebook gained a number of concessions, including: a longer warning period before a Facebook could be designated by the Code; a longer period before news organisations would be able to expect negotiations to be concluded; an acknowledgement that existing deals would be taken in to account during negotiations; and, most importantly, a clarification that if Facebook was to once again block news this would both prevent them being subject to the Code and was not be something the platform could be punished for. Like Google, though, Facebook’s biggest gain was again the Treasurer making it clear that by making deals in advance on the Code becoming law, it was likely that Facebook would not be designated, and thus not subject to the Code at all (Samios and Visentin). After these concessions the news standoff ended and on 23 February the Australian Treasurer declared that after tense negotiations Facebook had “refriended Australia”; the company had “committed to entering into good-faith negotiations with Australian news media businesses and seeking to reach agreements to pay for content” (Visentin). Over the next month there were some concerns voiced about slow progress, but then major deals were announced between Facebook and News Corp Australia, and with Nine, with other deals following closely (Meade, “Rupert Murdoch”). Just over a week after the ban began, Facebook returned news to their platform in Australia. Facebook obviously felt they had won the battle, but Australia Facebook users were clearly cannon fodder, with their interests and wellbeing ignored. Who Won? The Immediate Aftermath of the Code After the showdowns with Google and Facebook, the final amendments to the Code were made and it was legislated as the News Media and Digital Platforms Mandatory Bargaining Code (Australian Treasury), going into effect on 2 March 2021. However, when it became legally binding, not one single company was ‘designated’, meaning that the Code did not immediately apply to anyone. Yet deals had been struck, money would flow to Australian news companies, and Facebook had returned news to its platform in Australia. At the outset, Google, Facebook, news companies in Australia and the Australian government all claimed to have won the battle over the Code. Having talked up their tough stance on big tech platforms when the Digital Platforms Inquiry landed in 2019, the Australian Government was under public pressure to deliver on that rhetoric. The debates and media coverage surrounding the Code involved a great deal of political posturing and gained much public attention. The Treasurer was delighted to see deals being struck that meant Facebook and Google would pay Australian news companies. He actively portrayed this as the government protecting Australia’s interest and democracy. The fact that the Code was leveraged as a threat does mean that the nuances of the Code are unlikely to be tested in a courtroom in the near future. Yet as a threat it was an effective one, and it does remain in the Treasurer’s toolkit, with the potential to be deployed in the future. While mostly outside the scope of this article, it should definitely be noted that the biggest winner in the Code debate was Rupert Murdoch, executive chairman of News Corp. They were the strongest advocates of regulation forcing the digital giants to pay for news in the first place, and had the most to gain and least to lose in the process. Most large news organisations in Australia have fared well, too, with new revenue flowing in from Google and Facebook. However, one of the most important facets of the Code was the inclusion of mechanisms to ensure that regional and small news publishers in Australia would be able to negotiate with Facebook and Google. While some might be able to band together and strike terms (and some already have) it is likely that many smaller news companies in Australia will miss out, since the deals being struck with the bigger news companies appear to be big enough to ensure they are not designated, and thus not subject to the Code (Purtill). A few weeks after the Code became law ACCC Chair Rod Sims stated that the “problem we’re addressing with the news media code is simply that we wanted to arrest the decline in money going to journalism” (Kohler). On that front the Code succeeded. However, there is no guarantee the deals will mean money will support actual journalists, rather than disappearing as extra corporate profits. Nor is there any onus on Facebook or Google to inform news organisations about changes to their algorithms that might impact on news rankings. Also, as many Australia news companies are now receiving payments from Google and Facebook, there is a danger the news media will become dependent on that revenue, which may make it harder for journalists to report on the big tech giants without some perceptions of a conflict of interest. In a diplomatic post about the Code, Google thanked everyone who had voiced concerns with the initial drafts of the legislation, thanked Australian users, and celebrated that their newly launched Google News Showcase had “two million views of content” with more than 70 news partners signed up within Australia (Silva, “An Update”). Given that News Showcase had already begun rolling out elsewhere in the world, it is likely Google were already aware they were going to have to contribute to the production of journalism across the globe. The cost of paying for news in Australia may well have fallen within the parameters Google had already decided were acceptable and inevitable before the debate about the Code even began (Purtill). In the aftermath of the Code becoming legislation, Google also posted a cutting critique of Microsoft, arguing they were “making self-serving claims and are even willing to break the way the open web works in an effort to undercut a rival” (Walker). In doing so, Google implicitly claimed that the concessions and changes to the Code they had managed to negotiate effectively positioned them as having championed the free and open web. At the end of February 2021, in a much more self-congratulatory post-mortem of the Code entitled “The Real Story of What Happened with News on Facebook in Australia”, Facebook reiterated their assertion that they bring significant value to news publishers and that the platform receives no real value in return, stating that in 2020 Facebook provided “approximately 5.1 billion free referrals to Australian publishers worth an estimated AU$407 million to the news industry” (Clegg). Deploying one last confused metaphor, Facebook argued the original draft of the Code was “like forcing car makers to fund radio stations because people might listen to them in the car — and letting the stations set the price.” Of course, there was no mention that following that metaphor, Facebook would have bugged the car and used that information to plaster the internal surfaces with personalised advertising. Facebook also touted the success of their Facebook News product in the UK, albeit without setting a date for the rollout of the product in Australia. While Facebook did concede that “the decision to stop the sharing of news in Australia appeared to come out of nowhere”, what the company failed to do was apologise to Australian Facebook users for the confusion and inconvenience they experienced. Nevertheless, on Facebook’s own terms, they certainly positioned themselves as having come out winners. Future research will need to determine whether Facebook’s actions damaged their reputation or encouraged significant numbers of Australians to leave the platform permanently, but in the wake of a number of high-profile scandals, including Cambridge Analytica (Vaidhyanathan), it is hard to see how Facebook’s actions would not have further undermined consumer trust in the company and their main platform (Park et al.). In fighting the Code, Google and Facebook were not just battling the Australian government, but also the implication that if they paid for news in Australia, they likely would also have to do so in other countries. The Code was thus seen as a dangerous precedent far more than just a mechanism to compel payment in Australia. Since both companies ensured they made deals prior to the Code becoming law, neither was initially ‘designated’, and thus neither were actually subject to the Code at the time of writing. The value of the Code has been as a threat and a means to force action from the digital giants. How effective it is as a piece of legislation remains to be seen in the future if, indeed, any company is ever designated. For other countries, the exact wording of the Code might not be as useful as a template, but its utility to force action has surely been noted. Like the inquiry which initiated it, the Code set “the largest digital platforms, Google and Facebook, up against the giants of traditional media, most notably Rupert Murdoch’s News Corporation” (Flew and Wilding 50). Yet in a relatively unusual turn of events, both sides of that battle claim to have won. At the same time, EU legislators watched the battle closely as they considered an “Australian-style code” of their own (Dillon). Moreover, in the month immediately following the Code being legislated, both the US and Canada were actively pursuing similar regulation (Baier) with Facebook already threatening to remove news and go dark for Canadian Facebook users (van Boom). For Facebook, and Google, the battle continues, but fighting the Code has meant the genie of paying for news content is well and truly out of the bottle. References Australian Competition and Consumer Commission. 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Illegitimacy is a multifaceted concept, powerful because it has the ability to define both itself and its antithesis; what it is not. The first three definitions of the word “illegitimate” in the Oxford English Dictionary – to use an illegitimate academic source – begin with that negative: “illegitimate” is “not legitimate’, ‘not in accordance with or authorised by law”, “not born in lawful wedlock”. In fact, the OED offers eight different usages of the term “illegitimate”, all of which rely on the negation or absence of the legitimate counterpart to provide a definition. In other words, something can only be illegitimate in the sense of being outside the law, if a law exists. A child can only be considered illegitimate, “not born in lawful wedlock” if the concept of “lawful wedlock” exists.Not only individual but national identity can be constructed by defining what – or who – has a legitimate reason to be a part of that collective identity, and who does not. The extent to which the early years of Australian colonial history was defined by its punitive function can be mapped by an early usage of the term “illegitimate” as a means of defining the free settlers of Australia. In an odd reversal of conventional associations of “illegitimate”, the “illegitimates” of Australia were not convicts. They were people who had not been sent there for legitimate – (legal) reasons and who therefore did not fit into the depiction of Australia as a penal colony. The definition invites us to consider the relationship between Australia and Britain in those early years, when Australia provided Britain with a means of constructing itself as a “legitimate” society by functioning as a location where undesirable elements could be identified and excluded. The “illegitimates” of Australia challenged Australia’s function of rendering Britain a “legitimate” society. As a sense of what is “illegitimate” in a particular context is codified and disseminated, a corresponding sense of what is “legitimate” is also created, whether in the context of the family, the law, academia, or the nation. As individuals and groups label and marginalise what is considered unwanted, dangerous, superfluous or in other ways unsatisfactory in a society, the norms that are implicitly accepted become visible. Rather as the medical practice of diagnosis by exclusion enables a particular condition to be identified because other potential conditions have been ruled out, attempts to “rule out” forms of procreation, immigration, physical types, even forms of performance as illegitimate enable a legitimate counterpart to be formed and identified. Borrowing a thought from Tolstoy’s Anna Karenina, legitimates are all alike and formed within the rules; the illegitimates are illegitimate in a variety of ways. The OED lists “illegitimate” as a noun or adjective; the word’s primary function is to define a status or to describe something. Less commonly, it can be used as a verb; to “illegitimate” someone is to bastardise them, to render them no longer legitimate, to confer and confirm their illegitimate status. Although this has most commonly been used in terms of a change in parents’ marital status (for example Queen Elizabeth I of England was bastardised by having her parents’ marriage declared invalid; as had been also the case with her older half-sister, Mary) illegitimisation as a means of marginalising and excluding continues. In October 2014, Australian Immigration Minister Scott Morrison introduced legislation designed to retrospectively declare that children born in Australia to parents that have been designated “unlawful maritime arrivals” should inherit that marginalised status (Mosendz, Brooke). The denial of “birthright citizenship”, as it is sometimes called, to these infants illegitimises them in terms of their nationality, cutting them away from the national “family”. Likewise the calls to remove Australian nationality from individuals engaging in prohibited terrorist activities uses a strategy of illegitimisation to exclude them from the Australian community. No longer Australian, such people become “national bastards”.The punitive elements associated with illegitimacy are not the only part of the story, however. Rather than being simply a one-way process of identification and exclusion, the illegitimate can also be a vital source of generating new forms of cultural production. The bastard has a way of pushing back, resisting efforts at marginalisation. The papers in this issue of M/C consider the multifarious ways in which the illegitimate refuses to conform to its normative role of defining and obeying boundaries, fighting back from where it has been placed as being beyond the law. As previously mentioned, the OED lists eight possible usages of “illegitimate”. Serendipitously, the contributions to this issue of M/C address each one of them, in different ways. The feature article for this issue, by Katie Ellis, addresses the illegitimisation inherent in how we perceive disability. With a profusion of bastards to choose from in the Game of Thrones narratives, Ellis has chosen to focus on the elements of physical abnormality that confer illegitimate status. From the other characters’ treatment of the dwarf Tyrion Lannister, and other disabled figures within the story, Ellis is able to explore the marginalisation of disability, both as depicted by George R. R. Martin and experienced within the contemporary Australian community. Several contributions address the concept of the illegitimate from its meaning of outside the law, unauthorised or unwarranted. Anne Aly’s paper “Illegitimate: When Moderate Muslims Speak Out” sensitively addresses the illegitimate position to which many Muslims in Australia feel themselves relegated. As she argues, attempting to avoid being regarded as “apologists for Islam” yet simultaneously expected to act as a unifying voice for what is in fact a highly fragmented cultural mix, places such individuals in an insupportable, “illegitimate” position. Anne Aly also joins Lelia Green in exploring the rhetorical strategies used by various Australian governments to illegitimate specific cohorts of would-be Australian migrants. “Bastard immigrants: asylum seekers who arrive by boat and the illegitimate fear of the other” discusses attempts to designate certain asylum seekers as illegitimate intruders into the national family of Australia in the context of the ending of the White Australia policy and the growth of multicultural Australia. Both papers highlight the punitive impact of illegitimisation on particular segments of society and invite recognition of the unlawfulness, or illegitimacy, of the processes themselves that have been used to create such illegitimacy.Illegitimate processes and incorrect inferences, and the illegitimisation of an organisation through media representation which ignores a range of legitimate perspectives are the subject of Ashley Donkin’s work on the National School Chaplaincy and Student Welfare Program (NSCSWP). As Donkin notes, this has been a highly controversial topic in Australia, and her research identifies the inadequacies and prejudices that, she argues, contributed to an illegitimate representation of the programme in the Australian media. Without arguing for or against the NSCSWP, Donkin’s research exposes the extent of prejudiced reporting in the Australian media and its capacity to illegitimise programmes (or, indeed, individuals). Interesting here, and not entirely irrelevant (although not directly addressed in Donkin’s paper), is the notion of prejudice as being an opinion formed or promulgated prior to considering the equitable, just or judicial/judged position. Analogous to the way in which the illegitimate is outside the law, the prejudiced only falls within the law through luck, rather than judgement, since ill-advised opinion has guided its formation. Helen Vella Bonavita explores why illegitimacy is perceived as evil or threatening, looking to anthropologists Mary Douglas and Edmund Leach. Using Shakespeare’s Henry V as a case study, Vella Bonavita argues that illegitimacy is one of the preeminent metaphors used in literature and in current political discourses to articulate fears of loss of national as well as personal identity. As Vella Bonavita notes, as well as being a pollutant that the centre attempts to cast to the margins, the illegitimate can also be a potent threat, a powerful figure occupying an undeniable position, threatening the overturning of the established order. The OED’s definition of illegitimate as “one whose position is viewed in some way as illegitimate” is the perspective taken by Crystal Abidin and Herawaty Abbas. In her work “I also Melayu OK”, Abidin explores the difficult world of the bi-racial person in multi-ethnic Singapore. Through a series of interviews, Abbas describes the strategies by which individuals, particularly Malay-Chinese individuals, emphasise or de-emphasise particular linguistic or cultural behaviours in order to overcome their ambivalent cultural position and construct their own desired socially legitimate identity. Abidin’s positive perspective nonetheless evokes its shadow side, the spectre of the anti-miscegenation laws of a range of racist times and societies (but particularly Apartheid South Africa), and those societies’ attempts to outlaw any legitimisation of relationships, and children, that the law-makers wished to prohibit. The paper also resonates with the experience of relationships across sectarian divides and the parlous circumstances of Protestant –Catholic marriages and families during the 1970s in the north of Ireland, or of previously-acceptable Serbo-Croatian unions during the disintegration of the former Socialist Federal Republic of Yugoslavia in the 1990s. Herawaty Abbas and Brooke Collins-Gearing reflect on the process of academic self-determination and self-construction in “Dancing with an illegitimate feminism: a female Buginese scholar's voice in Australian Academia”. Abbas and Collins-Gearing address the research journey from the point of view of a female Buginese PhD candidate and an Indigenous Australian supervisor. With both candidate and supervisor coming from traditionally marginalised backgrounds in the context of Western academia, Abbas and Collins-Gearing chart a story of empowerment, of finding a new legitimacy in dialogue with conventional academic norms rather than conforming to them. Three contributions address the illegitimate in the context of the illegitimate child, moving from traditional associations of shame and unmarried pregnancy, to two creative pieces which, like Abidin, Abbas and Collins-Gearing, chart the transformative process that re-constructs the illegitimate space into an opportunity to form a new identity and the acceptance, and even embrace, of the previously de-legitimising authorities. Gardiner’s work, “It is almost as if there were a written script: child murder, concealment of birth and the unmarried mother in Western Australia” references two women whose stories, although situated almost two hundred years apart in time, follow a similarly-structured tale of pregnancy, shame and infant death. Kim Coull and Sue Bond in “Secret Fatalities and Liminalities” and “Heavy Baggage and the Adoptee” respectively, provide their own stories of illuminative engagement with an illegitimate position and the process of self-fashioning, while also revisiting the argument of the illegitimate as the liminal, a perspective previously advanced by Vella Bonavita’s piece. The creative potential of the illegitimate condition is the focus of the final three pieces of this issue. Bruno Starrs’s “Hyperlinking History and the Illegitimate Imagination” discusses forms of creative writing only made possible by the new media. Historic metafiction, the phrase coined by Linda Hutcheon to reflect the practice of inserting fictional characters into historical situations, is hardly a new phenomenon, but Starrs notes how the possibilities offered by e-publishing enable the creation of a new level of metafiction. Hyperlinks to external sources enable the author to engage the reader in viewing the book both as a work of fiction and as self-conscious commentary on its own fictionality. Renata Morais’ work on different media terminologies in “I say nanomedia, You say nano-media: il/legitimacy, interdisciplinarity and the anthropocene” also considers the creative possibilities engendered by interdisciplinary connections between science and culture. Her choice of the word “anthropocene,” denoting the geological period when humanity began to have a significant impact on the world’s ecosystems, itself reflects the process whereby an idea that began in the margins gains force and legitimacy. From an informal and descriptive term, the International Commission on Stratigraphy have recently formed a working group to investigate whether the “Anthropocene” should be formally adopted as the name for the new epoch (Sample).The final piece in this issue, Katie Lavers’ “Illegitimate Circus”, again traces the evolution of a theatrical form, satisfyingly returning in spirit if not in the written word to some of the experiences imagined by George R. R. Martin for his character Tyrion Lannister. “Illegitimate drama” was originally theatre which relied more on spectacle than on literary quality, according to the OED. Looking at the evolution of modern circus from Astley’s Amphitheatre through to the Cirque du Soleil spectaculars, Lavers’ article demonstrates that the relationship between legitimate and illegitimate is not one whereby the illegitimate conforms to the norms of the legitimate and thereby becomes legitimate itself, but rather where the initial space created by the designation of illegitimate offers the opportunity for a new form of art. Like Starrs’ hyperlinked fiction, or the illegitimate narrators of Coull or Bond’s work, the illegitimate art form does not need to reject those elements that originally constituted it as “illegitimate” in order to win approval or establish itself. The “illegitimate”, then, is not a fixed condition. Rather, it is a status defined according to a particular time and place, and which is frequently transitional and transformative; a condition in which concepts (and indeed, people) can evolve independently of established norms and practices. Whereas the term “illegitimate” has traditionally carried with it shameful, dark and indeed punitive overtones, the papers collected in this issue demonstrate that this need not be so, and that the illegitimate, possibly more than the legitimate, enlightens and has much to offer.ReferencesMosendz, Polly. “When a Baby Born in Australia Isn’t Australian”. The Atlantic 16 Oct. 2014. 25 Oct. 2014 ‹http://www.theatlantic.com/international/archive/2014/10/when-a-baby-born-in-australia-isnt-australian/381549/›Baskin, Brooke. “Asylum Seeker Baby Ferouz Born in Australia Denied Refugee Status by Court”. The Courier Mail 15 Oct. 2014. 25 Oct. 2014 ‹http://www.couriermail.com.au/news/queensland/asylum-seeker-baby-ferouz-born-in-australia-denied-refugee-status-by-court/story-fnihsrf2-1227091626528›.Sample, Ian. “Anthropocene: Is This the New Epoch of Humans?” The Guardian 16 Oct. 2014. 25 Oct. 2014 ‹http://www.theguardian.com/science/2014/oct/16/-sp-scientists-gather-talks-rename-human-age-anthropocene-holocene›.

IntroductionIn a 2013 press release issued by Blind Citizens Australia, the advocacy group announced they were lodging a human rights complaint against the Australian government and the ABC over the lack of audio description available on the public broadcaster. Audio description is a track of narration included between the lines of dialogue which describes important visual elements of a television show, movie or performance. Audio description is broadly recognised as an essential feature to make television accessible to audiences who are blind or vision impaired (Utray et al.). Indeed, Blind Citizens Australia maintained that audio description was as important as captioning on Australian television:people who are blind have waited too long and are frustrated that audio description on television remains indefinitely beyond our reach. Our Deaf or hearing impaired peers have always seen great commitment from the ABC, but we continue to feel like second class citizens.While audio description as a technology was developed in the 1960s—around the same time as captions (Ellis, “Netflix Closed Captions”)—it is not as widely available on television and access is therefore often considered to be out of reach for this group. As a further comparison, in Australia, while the provision of captions was mandated in the Broadcasting Services Act (BSA) 1992 and television sets had clear Australian standards regarding their capability to display captions, there is no legislation for audio description and no consistency regarding the ability of television sets sold in Australia to display them (Ellis, “Television’s Transition”). While as a technology, audio description is as old as captioning it is not as widely available on television. This is despite the promise of technological advancements to facilitate its availability. For example, Cronin and King predicted that technological change such as the introduction of stereo sound on television would facilitate a more widespread availability of audio description; however, this has not eventuated. Similarly, in the lead up to the transition from analogue to digital broadcasting in Australia, government policy documents predicted a more widespread availability of audio description as a result of increased bandwidth available via digital television (Ellis, “Television’s Transition”). While these predictions paved way for an audio description trial, there has been no amendment to the BSA to mandate its provision.Audio description has been experienced on Australian broadcast television in 2012, but only for a 14-week trial on ABC1. The trial report, and feedback from disability groups, identified several technical impediments and limitations which effected the experience of audio described content during this trial, including: the timing of the trial during a period in which the transition from analogue to digital television was still occurring (creating hardware compatibility issues for some consumers); the limitations of the “ad hoc” approach undertaken by the ABC and manual implementation of audio description; and the need for upgraded digital receivers (ABC “Trial of Audio Description”, 2). While advocacy groups acknowledged the technical complexities involved, the expected stakeholder discussions that were due to be held post-trial, in part to attempt to resolve the issues experienced, were never undertaken. As a result of the lack of subsequent commitments to providing audio description, in 2013 advocacy group Blind Citizens Australia lodged their formal complaints of disability discrimination against the ABC and the Federal Government. Since the 2012 trial on ABC1, the ABC’s catch-up portal iView instigated another audio description trial in 2015. Through the iView trial it was further confirmed that audio description held considerable benefits for people with a vision impairment. They also demonstrated that audio description was technically feasible, with far less ‘technical difficulties’ than the experience of the 2012 broadcast-based trial. Over the 15 month trial on ABC iView 1,305 hours of audio described content was provided and played 158, 277 times across multiple platforms, including iOS, Android, the Freeview app and desktop computers (ABC, “ABC iView Audio Description Trial”).Yet despite repeated audio description trials and the lodgement of discrimination complaints, there remains no audio description on Australian broadcast television. Similarly, whereas 55 per cent of DVDs released in Australia have captions, only 25 per cent include an audio description track (Media Access Australia). At the time of writing, the only audio description available on Australian television is on Netflix Australia, a subscription video on demand provider.This article seeks to highlight the importance of television access for people with disability, with a specific focus on the provision of audio description for people with vision impairments. Research consistently shows that despite being a visual medium, people with vision impairments watch television at least once a day (Cronin and King; Ellis, “Netflix Closed Captions”). However, while television access has been a priority for advocates for people who are Deaf and hard of hearing (Downey), audiences advocating audio description are only recently making gains (Ellis, “Netflix Closed Captions”; Ellis and Kent). These gains are frequently attributed to technological change, particularly the digitisation of television and the introduction of subscription video on demand where users access television content online and are not constrained by broadcast schedules. This transformation of how we access television is also considered in the article, again with a focus on the provision–or lack thereof—of audio description.This article also reports findings of research conducted with Australians with disabilities accessing the emerging video on demand environment in 2016. The survey was run online from January to February 2016. Survey respondents included people with disability, their families, and carers, and were sourced through disability organisations and community groups as well as via disability-focused social media. A total of 145 people completed the survey and 12 people participated in follow-up interviews. Insights were gained into both how people with disability are currently using video on demand and their anticipated usage of services. Of note is that most subscription video on demand services (Netflix Australia, Stan, and Presto) had only been introduced in Australia in the year before the survey being carried out, with only Foxtel Play and Quickflix having been in operation for some time prior to that.Finally, the article ends by looking at past and current advocacy in this area, including a discussion on existing—albeit, to date, limited—political will.Access to Television for People with DisabilitiesTelevision can be disabling in different ways for people with impairments, yet several accessibility features exist to translate information. For example, people who are D/deaf or hard of hearing may require captions, while people with vision impairments prefer to make use of audio description (Alper et al.). Similarly, people with mobility and dexterity impairments found the transition to digital broadcasting difficult, particularly with relation to set top box set up (Carmichael et al.). As Joshua Robare has highlighted, even legislation has generally favoured the inclusion of audiences with hearing impairments, while disregarding those with vision impairments. Similarly, much of the literature in this area focuses on the provision of captions—a vital accessibility feature for people who are D/deaf or hard of hearing. Consequently, research into accessibility to television for a diversity of impairments, going beyond hearing impairments, remains deficient.In a study of Australian audiences with disability conducted between September and November 2013—during the final months of the analogue to digital simulcast period of Australian broadcast television—closed captions, clean audio, and large/colour-coded remote control keys emerged as the most desired access features (see Ellis, “Digital Television Flexibility”). Audio description barely registered in the top five. In a different study conducted two years ago/later, when disabled Australian audiences of video on demand were asked the same question, captions continued to dominate at 63.4 per cent; however, audio description was also seen to be a necessary feature for almost one third of respondents (see Ellis et al., Accessing Subcription Video).Robert Kingett, founder of the Accessible Netflix Project, participated in our research and told us in an interview that video on demand providers treat accessibility as an “afterthought”, particularly for blind people whom most don’t think of as watching television. Yet research dating back to the 1990s shows almost 100 per cent of people with vision impairments watch television at least once a day (Cronin & King). Statistically, the number of Australians who identify as blind or vision impaired is not insignificant. Vision Australia estimates that over 357,000 Australians have a vision impairment, while one in five Australians have a disability of some form. With an ageing population, this number is expected to grow exponentially in the next ten years (Australian Network on Disability). Kingett therefore describes this lack of accessibility as evidence video on demand is “stuck in the dark ages”, and advocates that people with vision impairments do use video on demand and therefore continue to have unmet access needs.Video on Demand—Transforming TelevisionSubscription video on demand services have caused a major shift in the way television is used and consumed in Australia. Prior to 2015, there was a small subscription video on demand industry in this country. However, in 2015, following the launch of Netflix Australia, Stan, and Presto, Australia was described as having entered the “streaming wars” (Tucker) where consumers would benefit from the increased competition. As Netflix gained dominance in the video on demand market internationally, people with disability began to recognise the potential this service could have in transforming their access to television.For example, the growing availability of video on demand services continues to provide disruptive change to the way in which consumers enjoy information and entertainment. While traditional broadcast television has provided great opportunities for participation in news, events, and popular culture, both socially and in the workplace, the move towards video on demand services has seen a notable decline in traditional television viewing habits, with online continuing to increase at the expense of Australian free-to-air programming (C-Scott).For the general population, this always-on, always-available, and always-shareable nature of video on demand means that the experience is both convenient and instant. If a television show is of interest to friends and family, it can be quickly shared through popular social media with others, allowing everyone to join in the experience. For people with disability, the ability to both share and personalise the experience of television is critical to the popularity of video on demand services for this group. This gives them not only the same benefits as others but also ensures that people with disability are not unintentionally excluded from participation—it allows people with disability the choice as to whether or not to join in. However, exclusion from video on demand is a significant concern for people with disability due to the lack of accessibility features in popular subscription services. The lack of captions, audio description, and interfaces that do not comply with international Web accessibility standards are resulting in many people with disability being unable to fully participate in the preferred viewing platforms of family and friends.The impact of this expands beyond the consumption patterns of audiences, shifting the way the audience is defined and conceptualised. With an increasing distribution of audience attention to multiple channels, products, and services, the ability to, and strategies for, acquiring a large audience has changed (Napoli). As audience attention is distributed, it is broken up, into smaller, fragmented groups. The success, therefore, of a new provider may be to amass a large audience through the aggregation of smaller, niche audiences. This theory has significance for consumers who require audio description because they represent a viable target group. In this context, accessibility is reframed as a commercial opportunity rather than a cost (Ellis, “Netflix Closed Captions”).However, what this means for future provision of audio description in Australia is still unclear. Chris Mikul from Media Access Australia, author of Access on Demand, was interviewed as part of this research. He told us that the complete lack of audio description on local video on demand services can be attributed to the lack of Australian legislation requiring it. In an interview as part of this research he explained the central issue with audio description in this country as “the lack of audio description on broadcast TV, which is shocking in a world context”.International providers fare only slightly better. Robert Kingett established the Accessible Netflix Project in 2013 with the stated aim of advocating for the provision of audio description on Netflix. Netflix, despite a lack of a clear accessibility policy, are seen as being in front in terms of overall accessibility—captions are available for most content. However, the provision of audio description was initially not considered to be of such importance, and Netflix were initially against the idea, citing technical difficulties. Nevertheless, in 2015—shortly after their Australian launch—they did eventually introduce audio description on original programming, describing the access feature as an option customers could choose, “just like choosing the soundtrack in a different language” (Wright). However, despite such successful trials, the issue in the Australian market remains the absence of legislation mandating the provision of audio description in Australia and the other video on demand providers have not introduced audio description to compete with Netflix. As the Netflix example illustrates, both legislation and recognition of people with disability as a key audience demographic will result in a more accessible television environment for this group.Currently, it is debatable as to whether this increasingly competitive market, the shifting perception of audience attraction and retention, and the entry of multiple international video on demand providers, has influenced how accessibility is viewed, both for broadcast television and video on demand. Although there is some evidence for an increasing consideration of people with disability as “valid” consumers—take, for example, the iView audio description trial, or the inclusion of audio description by Netflix—our research indicates accessibility is still inconsistently considered, designed for, and applied by current providers.Survey Response: Key Issues Regarding AccessibilityRespondents were asked to provide an overall impression of video on demand services, and to tell us about their positive and negative experiences. Analysis of 68 extended responses, and the responses provided by the interview participants, identified a lack of availability of accessibility features such as audio description as a key problem. What our results indicate is that while customers with a disability are largely accommodating of the inaccessibility of providers—they use their own assistive technology to access content—they are keenly aware of the provisions that could be made. As one respondent put it:they could do a lot better: talking menus, spoken sub titles, and also spoken messages on screen.However, many expressed low expectations due to the continued absence of audio description on broadcast television:so, the other thing is, my expectations are quite low because of years of not having audio descriptions. I have slightly different expectations to other people.This reflection is important in considering both the shifting expectations regarding video on demand providers but also the need for a clear communication of what features are available so that providers can cater to—and therefore capture—niche markets.The survey identified captioning as the main accessibility problem of video on demand services. However, this may not accurately reflect the need for other accessibility features such as audio description. Rather, it may be indicative that this feature is often the only choice given to consumers. As, Chris Mikul identified, “the only disability being catered for to any great extent is deafness/hearing impairment”. Kingett agreed, noting:people who are deaf and hard of hearing are placed way before the rest because captions are beyond easy and cheap to create now. Please, there’s even companies that people use to crowd source captions so companies don’t have to do it anymore. This all came about because the deaf community has [banded] together … to achieve a cause. I know audio description isn’t as cheap to make as captions but, by these companies’ budgets that’s like dropping a penny.Advocacy and Political WillAs noted above, it has been argued by some that accessibility features that address vision impairments have been neglected. The reason behind this is twofold—the perception that this disability is experienced by a minority of the population and that, because blind people “don’t watch television”, it is not an important accessibility feature. This points towards a need for both disability advocacy and political will by politicians to introduce legislation. As one survey respondent identified, the reality is that, in Australia, neither politicians nor people with vision impairments have yet to address the issue on audio description in an organised or sustained way:we have very little audio described content available in Australia. We don’t have the population of blind people nor the political will by politicians to force providers to provide for us.However, Blind Citizens Australia—the coalition of television audiences with vision impairments who lodged the human rights complaint against the government and the ABC—suggest the tide is turning. Whereas advocates for people with vision impairments have traditionally focused on access to the workforce, the issue of television accessibility is increasingly gaining attention, particularly as a result of international activist efforts and the move towards video on demand (see Ellis and Kent).For example, Kingett’s Accessible Netflix Project in the US is considered one of the most successful accessibility movements towards the introduction of audio description. While its members are predominantly US-based, it does include several Australian members and continues to cover Netflix Australia’s stance on audio description, and be covered by Australian media and organisations (including Media Access Australia and Life Hacker). When Netflix launched in Australia, Kingett encouraged Australians to become more involved in the project (Ellis and Kent).However, despite the progress towards mandating of audio description in parliament and the resolution of efforts made by advocacy groups (including Vision Australia and Blind Citizens Australia), the status of audio description remains uncertain. Whilst some support has been gained—specifically through motions made by Senator Siewert and the ABC iView audio description trials—significant change has been slow. For example, conciliation discussions are still ongoing regarding the now four-year-old complaint brought against the ABC and the Federal Government by Blind Citizens Australia. Meanwhile, although the Senate supported Senator Siewert’s motion to change the Broadcasting Services Act to include audio description, the Act has yet to be amended.The results of multiple ABC trials of audio description remain in discussion. Whilst the recently released report on the findings of the April 2015—July 2016 iView trial states that the “trial has identified that those who utilised the audio description service found it a valuable enhancement to their media engagement and their social interactions” (ABC, “ABC iView Audio Description Trial” 18), it also cautioned that “any move to introduce AD services in Australia would have budgetary implications for the broadcasters in a constrained financial environment” and “broader legislative implications” (ABC, “ABC iView Audio Description Trial” 18). Indeed, although the trial was considered “successful”—in that experiences by users were generally positive and the benefits considerable (Media Access Australia, “New Report”)—the continuation of audio description on iView alone was clarified as representing “a systemic failure to provide people who are blind or have low vision with basic access to television now, given that iView is out of reach for many people in the blindness and low vision community” (Media Access Australia, “New Report”). Indeed, the relatively low numbers of plays of audio described content during the trial (158, 277 plays, representing 0.58% of total program plays on iView) were likely a result of a lack of access to smartphones or Internet technology, prohibitive data speeds and/or general Internet costs, all factors which affect the accessibility of video on demand significantly more for people with disability (Ellis et al., “Access for Everyone?”).On a more positive note, the culmination of advocacy pressure, the ABC iView trial, political attention, and increasing academic literature on the accessibility of Australian media has resulted in the establishment of an Audio Description Working Group by the government. This group consists of industry representatives, advocacy group representatives, academics, and “consumer representatives”. The aims of the group are to: identify options to sustainably increase access to audio description services; identify any impediments to the implementation of audio description; provide expert advice on audio description implementation options; and develop a report on the findings due at the end of 2017.ConclusionIn the absence of audio description, people who are blind or vision impaired report a less satisfying television experience (Cronin and King; Kingett). However, with each technological advancement in the delivery of television, from stereo sound to digital television, this group has held hopes for a more accessible experience. The reality, however, has been a continued lack of audio description, particularly in broadcast television.Several commentators have compared the provision of audio description with closed captioning. They find that audio description is not as widely available, and reflect this is likely a result of lack of legislation (Robare; Ellis, “Digital Television Flexibility”)—for example, in the Australian context, whereas the provision of captions is mandated in the Broadcasting Services Act 1992, audio description is not. As a result, there have been limited trials of audio description in this country and inconsistent standards in how to display it. As discussed throughout this paper, people with vision impairments and their allies therefore often draw on the example of the widespread “acceptance” of captions to make the case that audio description should also be more widely available.However, following the introduction of subscription video on demand in Australia, and particularly Netflix, the issue of audio description is receiving greater attention. It has been argued that video on demand has transformed television, particularly the ways in which television is accessed. Video on demand could also potentially transform the way we think about accessibility for audiences with disability. While captions are a well-established accessibility feature facilitating television access for people with a range of disabilities, video on demand is raising the profile of the importance of audio description for audiences with vision impairments.ReferencesABC. “Audio Description Trial on ABC Television: Report to the Minister for Broadband, Communications and the Digital Economy”. Dec. 2012. 8 Apr. 2017 <https://www.communications.gov.au/sites/g/files/net301/f/ABC-Audio-Description-Trial-Report2.pdf>.ABC. “ABC iView Audio Description Trial: Final Report to The Department of Communications and the Arts.” Oct. 2016. 6 Apr. 2017 <https://www.communications.gov.au/documents/final-report-trial-audio-description-abc-iview>.Alper, Meryl, et al. “Reimagining the Good Life with Disability: Communication, New Technology, and Humane Connections.” Communication and the Good Life. Ed. H. Wang. New York: Peter Lang, 2015.Australian Network on Disability. “Disability Statistics.” Mar. 2017. 30 Apr. 2017 <https://www.and.org.au/pages/disability-statistics.html>.Blind Citizens Australia. Government and ABC Fail to Deliver on Accessible TV for Australia’s Blind. Submission. 10 July 2013. 1 May 2017 <http://bca.org.au/submissions/>.C-Scott, Marc. “The Battle for Audiences as Free-TV Viewing Continues Its Decline.” Mumbrella 22 Apr. 2016. 24 May 2016 <https://mumbrella.com.au/the-battle-for-audiences-as-free-tv-viewing-continues-its-decline-362010>.Carmichael, Alex, et al. “Digital Switchover or Digital Divide: A Prognosis for Useable and Accessible Interactive Digital Television in the UK.” Universal Access in the Information Society 4 (2006): 400–16.Cronin, Barry J., and Sharon Robertson King. “The Development of the Descriptive Video Services.” National Center to Improve Practice in Special Education through Technology, Media and Materials. Sep. 1998. 8 May 2014 <https://www2.edc.org/NCIP/library/v&c/Cronin.htm>.Downey, G. “Constructing Closed-Captioning in the Public Interest: From Minority Media Accessibility to Mainstream Educational Technology.” Info 9.2–3 (2007): 69–82.Ellis, Katie. “Digital Television Flexibility: A Survey of Australians with Disability.” Media International Australia 150 (2014): 96.———. “Netflix Closed Captions Offer an Accessible Model for the Streaming Video Industry, But What about Audio Description?” Communication, Politics & Culture 47.3 (2015).———. “Television’s Transition to the Internet: Disability Accessibility and Broadband-Based TV in Australia.” Media International Australia 153 (2014): 53–63.Ellis, Katie, and Mike Kent. “Accessible Television: The New Frontier in Disability Media Studies Brings Together Industry Innovation, Government Legislation and Online Activism.” First Monday 20 (2015). <http://firstmonday.org/ojs/index.php/fm/article/view/6170>.Ellis, Katie, et al. Accessing Subscription Video on Demand: A Study of Disability and Streaming Television in Australia. Australian Communications Consumer Action Network. Aug. 2016. <https://accan.org.au/grants/current-grants/1066-accessing-video-on-demand-a-study-of-disability-and-streaming-television>.Ellis, Katie, et al. “Access for Everyone? Australia’s ‘Streaming Wars’ and Consumers with Disabilities.” Continuum (2017, publication pending).Kingett, Robert. “The Accessible Netflix Project Advocates Taking Steps to Ensure Netflix Accessibility for Everyone.” 2014. 30 Jan. 2014 <https://netflixproject.wordpress.com>.Media Access Australia. “Statistics on DVD Accessibility in Australia.” 2012. 21 Nov. 2014 <https://mediaaccess.org.au/dvds/Statistics%20on%20DVD%20accessibility%20in%20Australia>.———. “New Report on the Trial of A.D. on ABC iView.” 7 Mar. 2017. 30 Apr. 2017 <https://mediaaccess.org.au/latest_news/television/new-report-on-the-trial-of-ad-on-abc-iview>.Napoli, Philip M., ed. Audience Evolution: New Technologies and the Transformation of Media Audiences. New York: Columbia UP, 2011.Robare, Joshua S. “Television for All: Increasing Television Accessibility for the Visually Impaired through the FCC’s Ability to Regulate Video Description Technology.” Federal Communications Law Journal 63.2 (2011): 553–78.Tucker, Harry. “Netflix Leads the Streaming Wars, Followed by Foxtel’s Presto.” News.com.au 24 June 2016. 18 May 2016 <http://www.news.com.au/technology/home-entertainment/tv/netflix-leads-the-streaming-wars-followed-by-foxtels-presto/news-story/7adf45dcd7d9486ff47ec5ea5951287f>.Utray, Francisco, et al. “Monitoring Accessibility Services in Digital Television.” International Journal of Digital Multimedia Broadcasting (2012): 9.

Refereed publications (also known as peer-reviewed) are the currency of academia, yet many PhD theses in Australia result in only one or two such papers. Typically, a doctoral thesis requires the candidate to present (and pass) a public Confirmation Seminar, around nine to twelve months into candidacy, in which a panel of the candidate’s supervisors and invited experts adjudicate upon whether the work is likely to continue and ultimately succeed in the goal of a coherent and original contribution to knowledge. A Final Seminar, also public and sometimes involving the traditional viva voce or oral defence of the thesis, is presented two or three months before approval is given to send the 80,000 to 100,000 word tome off for external examination. And that soul-destroying or elation-releasing examiner’s verdict can be many months in the delivery: a limbo-like period during which the candidate’s status as a student is ended and her or his receipt of any scholarship or funding guerdon is terminated with perfunctory speed. This is the only time most students spend seriously writing up their research for publication although, naturally, many are more involved in job hunting as they pin their hopes on passing the thesis examination.There is, however, a slightly more palatable alternative to this nail-biting process of the traditional PhD, and that is the PhD by Published Papers (also known as PhD by Publications or PhD by Published Works). The form of my own soon-to-be-submitted thesis, it permits the submission for examination of a collection of papers that have been refereed and accepted (or are in the process of being refereed) for publication in academic journals or books. Apart from the obvious benefits in getting published early in one’s (hopefully) burgeoning academic career, it also takes away a lot of the stress come final submission time. After all, I try to assure myself, the thesis examiners can’t really discredit the process of double-blind, peer-review the bulk of the thesis has already undergone: their job is to examine how well I’ve unified the papers into a cohesive thesis … right? But perhaps they should at least be wary, because, unfortunately, the requirements for this kind of PhD vary considerably from institution to institution and there have been some cases where the submitted work is of questionable quality compared to that produced by graduates from more demanding universities. Hence, this paper argues that in my subject area of interest—film and television studies—there is a huge range in the set requirements for doctorates, from universities that award the degree to film artists for prior published work that has undergone little or no academic scrutiny and has involved little or no on-campus participation to at least three Australian universities that require candidates be enrolled for a minimum period of full-time study and only submit scholarly work generated and published (or submitted for publication) during candidature. I would also suggest that uncertainty about where a graduate’s work rests on this continuum risks confusing a hard-won PhD by Published Papers with the sometimes risible honorary doctorate. Let’s begin by dredging the depths of those murky, quasi-academic waters to examine the occasionally less-than-salubrious honorary doctorate. The conferring of this degree is generally a recognition of an individual’s body of (usually published) work but is often conferred for contributions to knowledge or society in general that are not even remotely academic. The honorary doctorate does not usually carry with it the right to use the title “Dr” (although many self-aggrandising recipients in the non-academic world flout this unwritten code of conduct, and, indeed, Monash University’s Monash Magazine had no hesitation in describing its 2008 recipient, musician, screenwriter, and art-school-dropout Nick Cave, as “Dr Cave” (O’Loughlin)). Some shady universities even offer such degrees for sale or ‘donation’ and thus do great damage to that institution’s credibility as well as to the credibility of the degree itself. Such overseas “diploma mills”—including Ashwood University, Belford University, Glendale University and Suffield University—are identified by their advertising of “Life Experience Degrees,” for which a curriculum vitae outlining the prospective graduand’s oeuvre is accepted on face value as long as their credit cards are not rejected. An aspiring screen auteur simply specifies film and television as their major and before you can shout “Cut!” there’s a degree in the mail. Most of these pseudo-universities are not based in Australia but are perfectly happy to confer their ‘titles’ to any well-heeled, vanity-driven Australians capable of completing the online form. Nevertheless, many academics fear a similarly disreputable marketplace might develop here, and Norfolk Island-based Greenwich University presents a particularly illuminating example. Previously empowered by an Act of Parliament consented to by Senator Ian Macdonald, the then Minister for Territories, this “university” had the legal right to confer honorary degrees from 1998. The Act was eventually overridden by legislation passed in 2002, after a concerted effort by the Australian Universities Quality Agency Ltd. and the Australian Vice-Chancellors’ Committee to force the accreditation requirements of the Australian Qualifications Framework upon the institution in question, thus preventing it from making degrees available for purchase over the Internet. Greenwich University did not seek re-approval and soon relocated to its original home of Hawaii (Brown). But even real universities flounder in similarly muddy waters when, unsolicited, they make dubious decisions to grant degrees to individuals they hold in high esteem. Although meaning well by not courting pecuniary gain, they nevertheless invite criticism over their choice of recipient for their honoris causa, despite the decision usually only being reached after a process of debate and discussion by university committees. Often people are rewarded, it seems, as much for their fame as for their achievements or publications. One such example of a celebrity who has had his onscreen renown recognised by an honorary doctorate is film and television actor/comedian Billy Connolly who was awarded an Honorary Doctor of Letters by The University of Glasgow in 2006, prompting Stuart Jeffries to complain that “something has gone terribly wrong in British academia” (Jeffries). Eileen McNamara also bemoans the levels to which some institutions will sink to in search of media attention and exposure, when she writes of St Andrews University in Scotland conferring an honorary doctorate to film actor and producer, Michael Douglas: “What was designed to acknowledge intellectual achievement has devolved into a publicity grab with universities competing for celebrity honorees” (McNamara). Fame as an actor (and the list gets even weirder when the scope of enquiry is widened beyond the field of film and television), seems to be an achievement worth recognising with an honorary doctorate, according to some universities, and this kind of discredit is best avoided by Australian institutions of higher learning if they are to maintain credibility. Certainly, universities down under would do well to follow elsewhere than in the footprints of Long Island University’s Southampton College. Perhaps the height of academic prostitution of parchments for the attention of mass media occurred when in 1996 this US school bestowed an Honorary Doctorate of Amphibious Letters upon that mop-like puppet of film and television fame known as the “muppet,” Kermit the Frog. Indeed, this polystyrene and cloth creation with an anonymous hand operating its mouth had its acceptance speech duly published (see “Kermit’s Acceptance Speech”) and the Long Island University’s Southampton College received much valuable press. After all, any publicity is good publicity. Or perhaps this furry frog’s honorary degree was a cynical stunt meant to highlight the ridiculousness of the practice? In 1986 a similar example, much closer to my own home, occurred when in anticipation and condemnation of the conferral of an honorary doctorate upon Prince Philip by Monash University in Melbourne, the “Members of the Monash Association of Students had earlier given a 21-month-old Chihuahua an honorary science degree” (Jeffries), effectively suggesting that the honorary doctorate is, in fact, a dog of a degree. On a more serious note, there have been honorary doctorates conferred upon far more worthy recipients in the field of film and television by some Australian universities. Indigenous film-maker Tracey Moffatt was awarded an honorary doctorate by Griffith University in November of 2004. Moffatt was a graduate of the Griffith University’s film school and had an excellent body of work including the films Night Cries: A Rural Tragedy (1990) and beDevil (1993). Acclaimed playwright and screenwriter David Williamson was presented with an Honorary Doctorate of Letters by The University of Queensland in December of 2004. His work had previously picked up four Australian Film Institute awards for best screenplay. An Honorary Doctorate of Visual and Performing Arts was given to film director Fred Schepisi AO by The University of Melbourne in May of 2006. His films had also been earlier recognised with Australian Film Institute awards as well as the Golden Globe Best Miniseries or Television Movie award for Empire Falls in 2006. Director George Miller was crowned with an Honorary Doctorate in Film from the Australian Film, Television, and Radio School in April 2007, although he already had a medical doctor’s testamur on his wall. In May of this year, filmmaker George Gittoes, a fine arts dropout from The University of Sydney, received an honorary doctorate by The University of New South Wales. His documentaries, Soundtrack to War (2005) and Rampage (2006), screened at the Sydney and Berlin film festivals, and he has been employed by the Australian Government as an official war artist. Interestingly, the high quality screen work recognised by these Australian universities may have earned the recipients ‘real’ PhDs had they sought the qualification. Many of these film artists could have just as easily submitted their work for the degree of PhD by Published Papers at several universities that accept prior work in lieu of an original exegesis, and where a film is equated with a book or journal article. But such universities still invite comparisons of their PhDs by Published Papers with honorary doctorates due to rather too-easy-to-meet criteria. The privately funded Bond University, for example, recommends a minimum full-time enrolment of just three months and certainly seems more lax in its regulations than other Antipodean institution: a healthy curriculum vitae and payment of the prescribed fee (currently AUD$24,500 per annum) are the only requirements. Restricting my enquiries once again to the field of my own research, film and television, I note that Dr. Ingo Petzke achieved his 2004 PhD by Published Works based upon films produced in Germany well before enrolling at Bond, contextualized within a discussion of the history of avant-garde film-making in that country. Might not a cynic enquire as to how this PhD significantly differs from an honorary doctorate? Although Petzke undoubtedly paid his fees and met all of Bond’s requirements for his thesis entitled Slow Motion: Thirty Years in Film, one cannot criticise that cynic for wondering if Petzke’s films are indeed equivalent to a collection of refereed papers. It should be noted that Bond is not alone when it comes to awarding candidates the PhD by Published Papers for work published or screened in the distant past. Although yet to grant it in the area of film or television, Swinburne University of Technology (SUT) is an institution that distinctly specifies its PhD by Publications is to be awarded for “research which has been carried out prior to admission to candidature” (8). Similarly, the Griffith Law School states: “The PhD (by publications) is awarded to established researchers who have an international reputation based on already published works” (1). It appears that Bond is no solitary voice in the academic wilderness, for SUT and the Griffith Law School also apparently consider the usual milestones of Confirmation and Final Seminars to be unnecessary if the so-called candidate is already well published. Like Bond, Griffith University (GU) is prepared to consider a collection of films to be equivalent to a number of refereed papers. Dr Ian Lang’s 2002 PhD (by Publication) thesis entitled Conditional Truths: Remapping Paths To Documentary ‘Independence’ contains not refereed, scholarly articles but the following videos: Wheels Across the Himalaya (1981); Yallambee, People of Hope (1986); This Is What I Call Living (1988); The Art of Place: Hanoi Brisbane Art Exchange (1995); and Millennium Shift: The Search for New World Art (1997). While this is a most impressive body of work, and is well unified by appropriate discussion within the thesis, the cynic who raised eyebrows at Petzke’s thesis might also be questioning this thesis: Dr Lang’s videos all preceded enrolment at GU and none have been refereed or acknowledged with major prizes. Certainly, the act of releasing a film for distribution has much in common with book publishing, but should these videos be considered to be on a par with academic papers published in, say, the prestigious and demanding journal Screen? While recognition at awards ceremonies might arguably correlate with peer review there is still the question as to how scholarly a film actually is. Of course, documentary films such as those in Lang’s thesis can be shown to be addressing gaps in the literature, as is the expectation of any research paper, but the onus remains on the author/film-maker to demonstrate this via a detailed contextual review and a well-written, erudite argument that unifies the works into a cohesive thesis. This Lang has done, to the extent that suspicious cynic might wonder why he chose not to present his work for a standard PhD award. Another issue unaddressed by most institutions is the possibility that the publications have been self-refereed or refereed by the candidate’s editorial colleagues in a case wherein the papers appear in a book the candidate has edited or co-edited. Dr Gillian Swanson’s 2004 GU thesis Towards a Cultural History of Private Life: Sexual Character, Consuming Practices and Cultural Knowledge, which addresses amongst many other cultural artefacts the film Lawrence of Arabia (David Lean 1962), has nine publications: five of which come from two books she co-edited, Nationalising Femininity: Culture, Sexuality and Cinema in Britain in World War Two, (Gledhill and Swanson 1996) and Deciphering Culture: Ordinary Curiosities and Subjective Narratives (Crisp et al 2000). While few would dispute the quality of Swanson’s work, the persistent cynic might wonder if these five papers really qualify as refereed publications. The tacit understanding of a refereed publication is that it is blind reviewed i.e. the contributor’s name is removed from the document. Such a system is used to prevent bias and favouritism but this level of anonymity might be absent when the contributor to a book is also one of the book’s editors. Of course, Dr Swanson probably took great care to distance herself from the refereeing process undertaken by her co-editors, but without an inbuilt check, allegations of cronyism from unfriendly cynics may well result. A related factor in making comparisons of different university’s PhDs by Published Papers is the requirements different universities have about the standard of the journal the paper is published in. It used to be a simple matter in Australia: the government’s Department of Education, Science and Training (DEST) held a Register of Refereed Journals. If your benefactor in disseminating your work was on the list, your publications were of near-unquestionable quality. Not any more: DEST will no longer accept nominations for listing on the Register and will not undertake to rule on whether a particular journal article meets the HERDC [Higher Education Research Data Collection] requirements for inclusion in publication counts. HEPs [Higher Education Providers] have always had the discretion to determine if a publication produced in a journal meets the requirements for inclusion in the HERDC regardless of whether or not the journal was included on the Register of Refereed Journals. As stated in the HERDC specifications, the Register is not an exhaustive list of all journals which satisfy the peer-review requirements (DEST). The last listing for the DEST Register of Refereed Journals was the 3rd of February 2006, making way for a new tiered list of academic journals, which is currently under review in the Australian tertiary education sector (see discussion of this development in the Redden and Mitchell articles in this issue). In the interim, some university faculties created their own rankings of journals, but not the Faculty of Creative Industries at the Queensland University of Technology (QUT) where I am studying for my PhD by Published Papers. Although QUT does not have a list of ranked journals for a candidate to submit papers to, it is otherwise quite strict in its requirements. The QUT University Regulations state, “Papers submitted as a PhD thesis must be closely related in terms of subject matter and form a cohesive research narrative” (QUT PhD regulation 14.1.2). Thus there is the requirement at QUT that apart from the usual introduction, methodology and literature review, an argument must be made as to how the papers present a sustained research project via “an overarching discussion of the main features linking the publications” (14.2.12). It is also therein stated that it should be an “account of research progress linking the research papers” (4.2.6). In other words, a unifying essay must make an argument for consideration of the sometimes diversely published papers as a cohesive body of work, undertaken in a deliberate journey of research. In my own case, an aural auteur analysis of sound in the films of Rolf de Heer, I argue that my published papers (eight in total) represent a journey from genre analysis (one paper) to standard auteur analysis (three papers) to an argument that sound should be considered in auteur analysis (one paper) to the major innovation of the thesis, aural auteur analysis (three papers). It should also be noted that unlike Bond, GU or SUT, the QUT regulations for the standard PhD still apply: a Confirmation Seminar, Final Seminar and a minimum two years of full-time enrolment (with a minimum of three months residency in Brisbane) are all compulsory. Such milestones and sine qua non ensure the candidate’s academic progress and intellectual development such that she or he is able to confidently engage in meaningful quodlibets regarding the thesis’s topic. Another interesting and significant feature of the QUT guidelines for this type of degree is the edict that papers submitted must be “published, accepted or submitted during the period of candidature” (14.1.1). Similarly, the University of Canberra (UC) states “The articles or other published material must be prepared during the period of candidature” (10). Likewise, Edith Cowan University (ECU) will confer its PhD by Publications to those candidates whose thesis consists of “only papers published in refereed scholarly media during the period of enrolment” (2). In other words, one cannot simply front up to ECU, QUT, or UC with a résumé of articles or films published over a lifetime of writing or film-making and ask for a PhD by Published Papers. Publications of the candidate prepared prior to commencement of candidature are simply not acceptable at these institutions and such PhDs by Published Papers from QUT, UC and ECU are entirely different to those offered by Bond, GU and SUT. Furthermore, without a requirement for a substantial period of enrolment and residency, recipients of PhDs by Published Papers from Bond, GU, or SUT are unlikely to have participated significantly in the research environment of their relevant faculty and peers. Such newly minted doctors may be as unfamiliar with the campus and its research activities as the recipient of an honorary doctorate usually is, as he or she poses for the media’s cameras en route to the glamorous awards ceremony. Much of my argument in this paper is built upon the assumption that the process of refereeing a paper (or for that matter, a film) guarantees a high level of academic rigour, but I confess that this premise is patently naïve, if not actually flawed. Refereeing can result in the rejection of new ideas that conflict with the established opinions of the referees. Interdisciplinary collaboration can be impeded and the lack of referee’s accountability is a potential problem, too. It can also be no less nail-biting a process than the examination of a finished thesis, given that some journals take over a year to complete the refereeing process, and some journal’s editorial committees have recognised this shortcoming. Despite being a mainstay of its editorial approach since 1869, the prestigious science journal, Nature, which only publishes about 7% of its submissions, has led the way with regard to varying the procedure of refereeing, implementing in 2006 a four-month trial period of ‘Open Peer Review’. Their website states, Authors could choose to have their submissions posted on a preprint server for open comments, in parallel with the conventional peer review process. Anyone in the field could then post comments, provided they were prepared to identify themselves. Once the usual confidential peer review process is complete, the public ‘open peer review’ process was closed and the editors made their decision about publication with the help of all reports and comments (Campbell). Unfortunately, the experiment was unpopular with both authors and online peer reviewers. What the Nature experiment does demonstrate, however, is that the traditional process of blind refereeing is not yet perfected and can possibly evolve into something less problematic in the future. Until then, refereeing continues to be the best system there is for applying structured academic scrutiny to submitted papers. With the reforms of the higher education sector, including forced mergers of universities and colleges of advanced education and the re-introduction of university fees (carried out under the aegis of John Dawkins, Minister for Employment, Education and Training from 1987 to 1991), and the subsequent rationing of monies according to research dividends (calculated according to numbers of research degree conferrals and publications), there has been a veritable explosion in the number of institutions offering PhDs in Australia. But the general public may not always be capable of differentiating between legitimately accredited programs and diploma mills, given that the requirements for the first differ substantially. From relatively easily obtainable PhDs by Published Papers at Bond, GU and SUT to more rigorous requirements at ECU, QUT and UC, there is undoubtedly a huge range in the demands of degrees that recognise a candidate’s published body of work. The cynical reader may assume that with this paper I am simply trying to shore up my own forthcoming graduation with a PhD by Published papers from potential criticisms that it is on par with a ‘purchased’ doctorate. Perhaps they are right, for this is a new degree in QUT’s Creative Industries faculty and has only been awarded to one other candidate (Dr Marcus Foth for his 2006 thesis entitled Towards a Design Methodology to Support Social Networks of Residents in Inner-City Apartment Buildings). But I believe QUT is setting a benchmark, along with ECU and UC, to which other universities should aspire. In conclusion, I believe further efforts should be undertaken to heighten the differences in status between PhDs by Published Papers generated during enrolment, PhDs by Published Papers generated before enrolment and honorary doctorates awarded for non-academic published work. Failure to do so courts cynical comparison of all PhD by Published Papers with unearnt doctorates bought from Internet shysters. References Brown, George. “Protecting Australia’s Higher Education System: A Proactive Versus Reactive Approach in Review (1999–2004).” Proceedings of the Australian Universities Quality Forum 2004. Australian Universities Quality Agency, 2004. 11 June 2008 ‹http://www.auqa.edu.au/auqf/2004/program/papers/Brown.pdf>. Campbell, Philip. “Nature Peer Review Trial and Debate.” Nature: International Weekly Journal of Science. December 2006. 11 June 2008 ‹http://www.nature.com/nature/peerreview/> Crisp, Jane, Kay Ferres, and Gillian Swanson, eds. Deciphering Culture: Ordinary Curiosities and Subjective Narratives. London: Routledge, 2000. Department of Education, Science and Training (DEST). “Closed—Register of Refereed Journals.” Higher Education Research Data Collection, 2008. 11 June 2008 ‹http://www.dest.gov.au/sectors/research_sector/online_forms_services/ higher_education_research_data_ collection.htm>. Edith Cowan University. “Policy Content.” Postgraduate Research: Thesis by Publication, 2003. 11 June 2008 ‹http://www.ecu.edu.au/GPPS/policies_db/tmp/ac063.pdf>. Gledhill, Christine, and Gillian Swanson, eds. Nationalising Femininity: Culture, Sexuality and Cinema in Britain in World War Two. Manchester: Manchester UP, 1996. Griffith Law School, Griffith University. Handbook for Research Higher Degree Students. 24 March 2004. 11 June 2008 ‹http://www.griffith.edu.au/centre/slrc/pdf/rhdhandbook.pdf>. Jeffries, Stuart. “I’m a celebrity, get me an honorary degree!” The Guardian 6 July 2006. 11 June 2008 ‹http://education.guardian.co.uk/higher/comment/story/0,,1813525,00.html>. Kermit the Frog. “Kermit’s Commencement Address at Southampton Graduate Campus.” Long Island University News 19 May 1996. 11 June 2008 ‹http://www.southampton.liu.edu/news/commence/1996/kermit.htm>. McNamara, Eileen. “Honorary senselessness.” The Boston Globe 7 May 2006. ‹http://www. boston.com/news/local/articles/2006/05/07/honorary_senselessness/>. O’Loughlin, Shaunnagh. “Doctor Cave.” Monash Magazine 21 (May 2008). 13 Aug. 2008 ‹http://www.monash.edu.au/pubs/monmag/issue21-2008/alumni/cave.html>. Queensland University of Technology. “Presentation of PhD Theses by Published Papers.” Queensland University of Technology Doctor of Philosophy Regulations (IF49). 12 Oct. 2007. 11 June 2008 ‹http://www.mopp.qut.edu.au/Appendix/appendix09.jsp#14%20Presentation %20of%20PhD%20Theses>. Swinburne University of Technology. Research Higher Degrees and Policies. 14 Nov. 2007. 11 June 2008 ‹http://www.swinburne.edu.au/corporate/registrar/ppd/docs/RHDpolicy& procedure.pdf>. University of Canberra. Higher Degrees by Research: Policy and Procedures (The Gold Book). 7.3.3.27 (a). 15 Nov. 2004. 11 June 2008 ‹http://www.canberra.edu.au/research/attachments/ goldbook/Pt207_AB20approved3220arp07.pdf>.

Since September 11, Muslims in Australia have experienced a heightened level of religiously and racially motivated vilification (Human Rights and Equal Opportunity Commission). These fears were poignantly expressed in a letter to the Editor of The West Australian newspaper from a Muslim woman shortly after the London terror attacks: All I want to say is that for those out there who might have kamikaze ideas of doing such an act here in Australia, please think of others (us) in your own community. The ones who will get hurt are your own, especially we the women who are an obvious target in the public and have to succumb to verbal abuse most of the time. Dealing with abuse and hatred from some due to 9/11 and Bali is not something I want to go through again. (21) The atmosfear of terror finds many expressions among the Muslim communities in Australia: the fear of backlash from some sectors of the wider community; the fear of subversion of Islamic identity in meeting the requirements of a politically defined “moderate” Islam; the fear of being identified as a potential terrorist or “person of interest” and the fear of potentially losing the rights bestowed on all other citizens. This fear or fears are grounded in the political and the media response to terrorism that perpetuates a popular belief that Muslims, as a culturally and religiously incompatible “other”, pose a threat to the Australian collective identity and, ostensibly, to Australia’s security. At the time of publication, for example, there was mob violence involving 5,000 young people converging on Sydney’s Cronulla beach draped in Australian flags singing Waltzing Matilda and Advance Australia Fair as well as chanting “kill the Lebs”, “no more Lebs” (Lebanese). The mob was itself brought together by a series of SMS messages, appealing to participants to “help support Leb and Wog bashing day” and to “show solidarity” against a government-identified “threat to Aussie identity” (The West Australian). Since September 11 and the ensuing war on terror, a new discourse of terrorism has emerged as a way of expressing how the world has changed and defining a state of constant alert (Altheide). “The war on terror” refers as much to a perpetual state of alertness as it does to a range of strategic operations, border control policies, internal security measures and public awareness campaigns such as “be alert, not alarmed”. According to a poll published in The Sydney Morning Herald in April 2004, 68 per cent of Australians believed that Australia was at threat of an imminent terrorist attack (Michaelsen). In a major survey in Australia immediately after the September 11 attacks Dunn & Mahtani found that more than any other cultural or ethnic group, Muslims and people from the Middle East were thought to be unable to fit into Australia. Two thirds of those surveyed believed that humanity could be sorted into natural categories of race, with the majority feeling that Australia was weakened by people of different ethnic origins. Fifty-four per cent of those surveyed, mainly women, said they would be concerned if a relative of theirs married a Muslim. The majority of the Muslim population, not surprisingly, has gone into a “siege mentality” (Hanna). The atmosfear of terror in the Western world is a product of the media and political construction of the West as perpetually at threat of a terrorist attack from a foreign, alien, politically defined “other”, where “insecurity…is the new normal” (Massumi 31). Framed in a rhetoric that portrays it as a battle for the Western values of democracy and freedom, the “war on terror” becomes not just an event in space and time but a metonym for a new world order, drawing on distinctions between “us” and “them” and “the West” and “others” (Osuri and Banerjee) and motivating collective identity based on a construction of “us” as victims and “them” as the objects of fear, concern and suspicion. The political response to the war on terror has inculcated an atmosfear of terror where Australian Muslims are identified as the objects of this fear. The fear of terrorism is being modulated through government and the popular media to perpetuate a state of anxiety that finds expression in the heightened levels of concern and suspicion over a perceived threat. In the case of the war on terror, this threat is typically denoted as radical Islam and, by inference, Australian Muslims. In his exposition of political fear, Corey Robin notes that a central element of political fear is that it is often not read as such – rendering it alien to analysis, critical debate and understanding. Nowhere is this more salient than in the rhetoric on the war on terror characterised by the familiar invocation of terms like democracy and freedom to make distinctions between “the West and the rest” and to legitimise references to civilised and uncivilised worlds. In his speech delivered at the United Nations Security Council Ministerial Session on Terrorism on 20 January 2003, Colin Powell invoked the rhetoric of a clash of civilisations and urged, “we must rid the civilised world of this cancer … We must rise to the challenge with actions that will ride the globe of terrorism and create a world in which all God’s children can live without fear”. It is this construction of the war on terror as a global battle between “the West and the rest” that enables and facilitates the affective response to political fear – a reaffirmation of identity and membership of a collective. As Robin states: Understanding the objects of our fear as less than political allows us to treat them as intractable foes. Nothing can be done to accommodate them: they can only be killed or contained. Understanding the objects of our fear as not political also renews us as a collective. Afraid, we are like the audience in a crowded theatre confronting a man falsely shouting fire: united, not because we share similar beliefs of aspiration but because we are equally threatened. (6) This response has found expression in the perception of Muslims as an alien, culturally incompatible and utterly threatening other, creating a state of social tension where the public’s anxiety has been and continues to be directed at Australian Muslims who visibly represent the objects of the fear of terror. The Australian Government’s response to the war on terror exemplifies what Brian Massumi terms “affective modulation” whereby the human response to the fear of terror, that of a reinforcement and renewal of collective identity, has been modulated and transformed from an affective response to an affective state of anxiety – what the authors term the atmosfear of terror. Affect for Massumi can be inscribed in the flesh as “traces of experience” – an accumulation of affects. It is in this way that Massumi views affect as “autonomous” (Megan Watkins also makes this argument, and has further translated Massumi's notions into the idea of pedagogic affect/effect). In the Australian context, after more than four years of collected traces of experiences of images of threat, responses to terrorism have become almost reflexive – even automated. Affective modulation in the Australian context relies on the regenerative capacity of fear, in Massumi’s terms its “ontogenetic powers” (45) to create an ever-present threat and maintain fear as a way of life. The introduction of a range of counter-terrorism strategies, internal-security measures, legislative amendments and policies, often without public consultation and timed to coincide with “new” terror alerts is testimony to the affective machinations of the Australian government in its response to the war on terror. Virilio and Lotringer called “pure war” the psychological state that happens when people know that they live in a world where the potential for sudden and absolute destruction exists. It is not the capacity for destruction so much as the continual threat of sudden destruction that creates this psychology. Keith Spence has stated that in times of crisis the reasoned negotiation of risk is marginalised. The counter-terrorism legislation introduced in response to the war on terror is, arguably, the most drastic anti-libertarian measures Australia has witnessed and constitutes a disproportionate response to Australia’s overall risk profile (Michaelsen). Some of these measures would once have seemed an unthinkable assault on civil liberties and unreasonably authoritarian. Yet in the war on terror, notes Jessica Stern, framed as a global war of good versus evil, policies and strategies that once seemed impossible suddenly become constructed as rationale, if not prudent. Since September 11, the Australian government has progressively introduced a range of counter-terrorism measures including over 30 legislative amendments and, more recently, increased powers for the police to detain persons of interest suspected of sedition. In the wake of the London bombings, the Prime Minister called a summit with Muslim representatives from around the nation. In the two hours that they met, the summit developed a Statement of Principles committing members of Muslim communities to combat radicalisation and pursue “moderate” Islam. As an affective machination, the summit presents as a useful political tool for modulating the existing anxieties in the Australian populace. The very need for a summit of this nature and for the development of a Statement of Principles (later endorsed by the Council of Australian Governments or COAG) sends a lucid message to the Australian public. Not only are Australian Muslims responsible for terrorism but they also have the capacity to prevent or minimise the threat of an attack in Australia. Already the focus of at least a decade of negative stereotyping in the popular Australia media (Brasted), Australian Muslims all too quickly and easily became agents in the Government’s affective tactics. The policy response to the war on terror has given little consideration to the social implications of sustaining a fear of terrorism, placing much emphasis on security- focused counter-terrorism measures rather than education and dialogue. What governments and communities need to address is the affective aspects of the atmosfear of terror. Policy makers can begin by becoming self-reflexive and developing an understanding of the real impact of fear and the affective modulation of this fear. Communities can start by developing an understanding of how policy induced fear is affecting them. To begin this process of reflection, governments and communities need to recognise fear of terrorism as a political tool. Psychological explanations for fear or trauma are important, especially if we are to plan policy responses to them. However, if we are to fight against policy-induced fear, we need to better understand and recognise affective modulation as a process that is not reducible to individual psychology. Viewed from the perspective of affect, the atmosfear of terror reveals an attempt to modulate public anxiety and sustain a sense of Australia as perpetually at threat from a culturally incompatible and irreconcilable “other”. References Altheide, David. L. “Consuming Terrorism.” Symbolic Interaction 27.3 (2004): 289–308. Brasted, Howard, V. “Contested Representations in Historical Perspective: Images of Islam and the Australian Press 1950-2000”. In A. Saeed & S. Akbarzadeh, Muslim Communities in Australia. Sydney: U of NSW P, 2001. Dunn, K.M., and M. Mahtani. “Media Representations of Ethnic Minorities.” Progress in Planning 55.3 (2001): 63–72. Dunn, K.M. “The Cultural Geographies of Citizenship in Australia.” Geography Bulletin 33.1 (2001): 4–8. “Genesis of Cronulla’s Ugly Sunday Began Years Ago.” The West Australian 2005: 11. Green, Lelia. “Did the World Really Change on 9/11?” Australian Journal of Communication 29.2 (2002): 1–14. Hanna, D. 2003. “Siege Mentality: Current Australian Response.” Salam July-Aug. (2003): 12–4. Human Rights and Equal Opportunity Commission. Ismaa – Listen: National Consultations on Eliminating Prejudice against Arab and Muslim Australians. Sydney: Human Rights and Equal Opportunity Commission, 2004. Kerbaj, Richard. “Clerics Still Preaching Hatred of West.” The Australian 3 Nov. 2005. Kinnvall, Catarina. “Globalization and Religious Nationalism: Self, Identity, and the Search for Ontological Security.” Political Psychology 25.5 (2004): 741. “Letters to the Editor.” The West Australian 25 July 2005: 21. Massumi, Brian. “Fear (The Spectrum Said).” Positions 13.1 (2005): 31–48. Massumi, Brian. “The Autonomy of Affect.” In P. Patton, ed., Deleuze: A Critical Reader. Cambridge, Mass.: Blackwell, 1996. “Meeting with Islamic Community Leaders, Statement of Principles.” 23 Aug. 2005. http://www.pm.gov.au/news/media_releases/media_Release1524.html> Michaelsen, Christopher. “Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?” Studies in Conflict and Terrorism 28.4 (2005): 321–40. Osuri, Goldie, and Subhabrata Bobby Banerjee. “White Diasporas: Media Representations of September 11 and the Unbearable Whiteness of Being in Australia.” Social Semiotics 14.2 (2004): 151–71. Powell, Colin. “Ridding the World of Global Terrorism: No Countries or Citizens are Safe.” Vital Speeches of the Day 69.8 (2003): 230–3. Robin, Corey. Fear: The History of a Political Idea. New York: Oxford UP, 2004. Spence, Keith. “World Risk Society and War against Terror.” Political Studies 53.2 (2005): 284–304. Stern, Jessica. “Fearing Evil.” Social Research 71.4 (2004): 1111–7. “Terrorism Chronology.” Parliament of Australia Parliamentary Library. http://www.aph.gov.au/library/intguide/law/terrorism.htm> Tomkins, Silvan. Affect, Imagery and Consciousness. New York: Springer Publishing, 1962. Virilio, Paul, and Sylvere Lotringer. Pure War. New York: Semio-text(e), 1997. Watkins, Megan. “Pedagogic Affect/Effect: Teaching Writing in the Primary Years of School.” Presented at Redesigning Pedagogy: Research, Policy, Practice Conference. Singapore: National Institute of Education, 31 May 2005. Citation reference for this article MLA Style Aly, Anne, and Mark Balnaves. "The Atmosfear of Terror: Affective Modulation and the War on Terror." M/C Journal 8.6 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0512/04-alybalnaves.php>. APA Style Aly, A., and M. Balnaves. (Dec. 2005) "The Atmosfear of Terror: Affective Modulation and the War on Terror," M/C Journal, 8(6). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0512/04-alybalnaves.php>.

One of the most distinct places the politics of affect have played out in Australia of late has been in the struggles around the mandatory detention of undocumented migrants; specifically, in arguments about the amount of compassion border control practices should or do entail. Indeed, in 1990 the newly established Joint Standing Committee on Migration (JSCM) published its first report, Illegal Entrants in Australia: Balancing Control and Compassion. Contemporaneous, thought not specifically concerned, with the establishment of mandatory detention for asylum seekers, this report helped shape the context in which detention policy developed. As the Bureau of Immigration and Population Research put it in their summary of the report, “the Committee endorsed a tough stance regarding all future illegal entrants but a more compassionate stance regarding those now in Australia” (24). It would be easy now to frame this report in a narrative of decline. Under a Labor government the JSCM had at least some compassion to offer; since the 1996 conservative Coalition victory any such compassion has been in increasingly short supply, if not an outright political liability. This is a popular narrative for those clinging to the belief that Labor is still, in some residual sense, a social-democratic party. I am more interested in the ways the report’s subtitle effectively predicted the framework in which debates about detention have since been constructed: control vs. compassion, with balance as the appropriate mediating term. Control and compassion are presented as the poles of a single governmental project insofar as they can be properly calibrated; but at the same time, compassion is presented as an external balance to the governmental project (control), an extra-political restriction of the political sphere. This is a very formal way to put it, but it reflects a simple, vernacular theory that circulates widely among refugee activists. It is expressed with concision in Peter Mares’ groundbreaking book on detention centres, Borderlines, in the chapter title “Compassion as a vice”. Compassion remains one of the major themes and demands of Australian refugee advocates. They thematise compassion not only for the obvious reasons that mandatory detention involves a devastating lack thereof, and that its critics are frequently driven by intense emotional connections both to particular detainees and TPV holders and, more generally, to all who suffer the effects of Australian border control. There is also a historical or conjunctural element: as Ghassan Hage has written, for the last ten years or so many forms of political opposition in Australia have organised their criticisms in terms of “things like compassion or hospitality rather than in the name of a left/right political divide” (7). This tendency is not limited to any one group; it ranges across the spectrum from Liberal Party wets to anarchist collectives, via dozens of organised groups and individuals varying greatly in their political beliefs and intentions. In this context, it would be tendentious to offer any particular example(s) of compassionate activism, so let me instead cite a complaint. In November 2002, the conservative journal Quadrant worried that morality and compassion “have been appropriated as if by right by those who are opposed to the government’s policies” on border protection (“False Refugees” 2). Thus, the right was forced to begin to speak the language of compassion as well. The Department of Immigration, often considered the epitome of the lack of compassion in Australian politics, use the phrase “Australia is a compassionate country, but…” so often they might as well inscribe it on their letterhead. Of course this is hypocritical, but it is not enough to say the right are deforming the true meaning of the term. The point is that compassion is a contested term in Australian political discourse; its meanings are not fixed, but constructed and struggled over by competing political interests. This should not be particularly surprising. Stuart Hall, following Ernesto Laclau and others, famously argued that no political term has an intrinsic meaning. Meanings are produced – articulated, and de- or re-articulated – through a dynamic and partisan “suturing together of elements that have no necessary or eternal belongingness” (10). Compassion has many possible political meanings; it can be articulated to diverse social (and antisocial) ends. If I was writing on the politics of compassion in the US, for example, I would be talking about George W. Bush’s slogan of “compassionate conservatism”, and whatever Hannah Arendt meant when she argued that “the passion of compassion has haunted and driven the best men [sic] of all revolutions” (65), I think she meant something very different by the term than do, say, Rural Australians for Refugees. As Lauren Berlant has written, “politicized feeling is a kind of thinking that too often assumes the obviousness of the thought it has” (48). Hage has also opened this assumed obviousness to question, writing that “small-‘l’ liberals often translate the social conditions that allow them to hold certain superior ethical views into a kind of innate moral superiority. They see ethics as a matter of will” (8-9). These social conditions are complex – it isn’t just that, as some on the right like to assert, compassion is a product of middle class comfort. The actual relations are more dynamic and open. Connections between class and occupational categories on the one hand, and social attitudes and values on the other, are not given but constructed, articulated and struggled over. As Hall put it, the way class functions in the distribution of ideologies is “not as the permanent class-colonization of a discourse, but as the work entailed in articulating these discourses to different political class practices” (139). The point here is to emphasise that the politics of compassion are not straightforward, and that we can recognise and affirm feelings of compassion while questioning the politics that seem to emanate from those feelings. For example, a politics that takes compassion as its basis seems ill-suited to think through issues it can’t put a human face to – that is, the systematic and structural conditions for mandatory detention and border control. Compassion’s political investments accrue to specifiable individuals and groups, and to the harms done to them. This is not, as such, a bad thing, particularly if you happen to be a specifiable individual to whom a substantive harm has been done. But compassion, going one by one, group by group, doesn’t cope well with situations where the form of the one, or the form of the disadvantaged minority, constitutes not only a basis for aid or emancipation, but also violently imposes particular ideas of modern western subjectivity. How does this violence work? I want to answer by way of the story of an Iranian man who applied for asylum in Australia in 2004. In the available documents he is referred to as “the Applicant”. The Applicant claimed asylum based on his homosexuality, and his fear of persecution should he return to Iran. His asylum application was rejected by the Refugee Review Tribunal because the Tribunal did not believe he was really gay. In their decision they write that “the Tribunal was surprised to observe such a comprehensive inability on the Applicant’s part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him”. The phenomena the Tribunal suggest might have been emotion-stirring for a gay Iranian include Oscar Wilde, Alexander the Great, Andre Gide, Greco-Roman wrestling, Bette Midler, and Madonna. I can personally think of much worse bases for immigration decisions than Madonna fandom, but there is obviously something more at stake here. (All quotes from the hearing are taken from the High Court transcript “WAAG v MIMIA”. I have been unable to locate a transcript of the original RRT decision, and so far as I know it remains unavailable. Thanks to Mark Pendleton for drawing my attention to this case, and for help with references.) Justice Kirby, one of the presiding Justices at the Applicant’s High Court appeal, responded to this with the obvious point, “Madonna, Bette Midler and so on are phenomena of the Western culture. In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind”. Indeed, the High Court is repeatedly critical and even scornful of the Tribunal decision. When Mr Bennett, who is appearing for the Minister for Immigration in the appeal begins his case, he says, “your Honour, the primary attack which seems to be made on the decision of the –”, he is cut off by Justice Gummow, who says, “Well, in lay terms, the primary attack is that it was botched in the Tribunal, Mr Solicitor”. But Mr Bennett replies by saying no, “it was not botched. If one reads the whole of the Tribunal judgement, one sees a consistent line of reasoning and a conclusion being reached”. In a sense this is true; the deep tragicomic weirdness of the Tribunal decision is based very much in the unfolding of a particular form of homophobic rationality specific to border control and refugee determination. There have been hundreds of applications for protection specifically from homophobic persecution since 1994, when the first such application was made in Australia. As of 2002, only 22% of those applications had been successful, with the odds stacked heavily against lesbians – only 7% of lesbian applicants were successful, against a shocking enough 26% of gay men (Millbank, Imagining Otherness 148). There are a number of reasons for this. The Tribunal has routinely decided that even if persecution had occurred on the basis of homosexuality, the Applicant would be able to avoid such persecution if she or he acted ‘discreetly’, that is, hid their sexuality. The High Court ruled out this argument in 2003, but the Tribunal maintains an array of effective techniques of homophobic exclusion. For example, the Tribunal often uses the Spartacus International Gay Guide to find out about local conditions of lesbian and gay life even though it is a tourist guide book aimed at Western gay men with plenty of disposable income (Dauvergne and Millbank 178-9). And even in cases which have found in favour of particular lesbian and gay asylum seekers, the Tribunal has often gone out of its way to assert that lesbians and gay men are, nevertheless, not the subjects of human rights. States, that is, violate no rights when they legislate against lesbian and gay identities and practices, and the victims of such legislation have no rights to protection (Millbank, Fear 252-3). To go back to Madonna. Bennett’s basic point with respect to the references to the Material Girl et al is that the Tribunal specifically rules them as irrelevant. Mr Bennett: The criticism which is being made concerns a question which the Tribunal asked and what is very much treated in the Tribunal’s judgement as a passing reference. If one looks, for example, at page 34 – Kirby J: This is where Oscar, Alexander and Bette as well as Madonna turn up? Mr Bennett: Yes. The very paragraph my learned friend relies on, if one reads the sentence, what the Tribunal is saying is, “I am not looking for these things”. Gummow J: Well, why mention it? What sort of training do these people get in decision making before they are appointed to this body, Mr Solicitor? Mr Bennett: I cannot assist your Honour on that. Gummow J: No. Well, whatever it is, what happened here does not speak highly of the results of it. To gloss this, Bennett argues that the High Court are making too much of an irrelevant minor point in the decision. Mr Bennett: One would think [based on the High Court’s questions] that the only things in this judgement were the throwaway references saying, “I wasn’t looking for an understanding of Oscar Wilde”, et cetera. That is simply, when one reads the judgement as a whole, not something which goes to the centre at all… There is a small part of the judgement which could be criticized and which is put, in the judgement itself, as a subsidiary element and prefaced with the word “not”. Kirby J: But the “not” is a bit undone by what follows when I think Marilyn [Monroe] is thrown in. Mr Bennett: Well, your Honour, I am not sure why she is thrown in. Kirby J: Well, that is exactly the point. Mr Bennett holds that, as per Wayne’s World, the word “not” negates any clause to which it is attached. Justice Kirby, on the other hand, feels that this “not” comes undone, and that this undoing – and the uncertainty that accrues to it – is exactly the point. But the Tribunal won’t be tied down on this, and makes use of its “not” to hold gay stereotypes at arm’s length – which is still, of course, to hold them, at a remove that will insulate homophobia against its own illegitimacy. The Tribunal defends itself against accusations of homophobia by announcing specifically and repeatedly, in terms that consciously evoke culturally specific gay stereotypes, that it is not interested in those stereotypes. This unconvincing alibi works to prevent any inconvenient accusations of bias from butting in on the routine business of heteronormativity. Paul Morrison has noted that not many people will refuse to believe you’re gay: “Claims to normativity are characteristically met with scepticism. Only parents doubt confessions of deviance” (5). In this case, it is not a parent but a paternalistic state apparatus. The reasons the Tribunal did not believe the applicant [were] (a) because of “inconsistencies about the first sexual experience”, (b) “the uniformity of relationships”, (c) the “absence of a “gay” circle of friends”, (d) “lack of contact with the “gay” underground” and [(e)] “lack of other forms of identification”. Of these the most telling, I think, are the last three: a lack of gay friends, of contact with the gay underground, or of unspecified other forms of identification. What we can see here is that even if the Tribunal isn’t looking for the stereotypical icons of Western gay culture, it is looking for the characteristic forms of Western gay identity which, as we know, are far from universal. The assumptions about the continuities between sex acts and identities that we codify with names like lesbian, gay, homosexual and so on, often very poorly translate the ways in which non-Western populations understand and describe themselves, if they translate them at all. Gayatri Gopinath, for example, uses the term “queer diaspor[a]... in contradistinction to the globalization of “gay” identity that replicates a colonial narrative of development and progress that judges all other sexual cultures, communities, and practices against a model of Euro-American sexual identity” (11). I can’t assess the accuracy of the Tribunal’s claims regarding the Applicant’s social life, although I am inclined to scepticism. But if the Applicant in this case indeed had no gay friends, no contact with the gay underground and no other forms of identification with the big bad world of gaydom, he may obviously, nevertheless, have been a Man Who Has Sex With Men, as they sometimes say in AIDS prevention work. But this would not, either in the terms of Australian law or the UN Convention, qualify him as a refugee. You can only achieve refugee status under the terms of the Convention based on membership of a ‘specific social group’. Lesbians and gay men are held to constitute such groups, but what this means is that there’s a certain forcing of Western identity norms onto the identity and onto the body of the sexual other. This shouldn’t read simply as a moral point about how we should respect diversity. There’s a real sense that our own lives as political and sexual beings are radically impoverished to the extent we fail to foster and affirm non-Western non-heterosexualities. There’s a sustaining enrichment that we miss out on, of course, in addition to the much more serious forms of violence others will be subject to. And these are kinds of violence as well as forms of enrichment that compassionate politics, organised around the good refugee, just does not apprehend. In an essay on “The politics of bad feeling”, Sara Ahmed makes a related argument about national shame and mourning. “Words cannot be separated from bodies, or other signs of life. So the word ‘mourns’ might get attached to some subjects (some more than others represent the nation in mourning), and it might get attached to some objects (some losses more than others may count as losses for this nation)” (73). At one level, these points are often made with regard to compassion, especially as it is racialised in Australian politics; for example, that there would be a public outcry were we to detain hypothetical white boat people. But Ahmed’s point stretches further – in the necessary relation between words and bodies, she asks not only which bodies do the describing and which are described, but which are permitted a relation to language at all? If “words cannot be separated from bodies”, what happens to those bodies words fail? The queer diasporic body, so reductively captured in that phrase, is a case in point. How do we honour its singularity, as well as its sociality? How do we understand the systematicity of the forces that degrade and subjugate it? What do the politics of compassion have to offer here? It’s easy for the critic or the cynic to sneer at such politics – so liberal, so sentimental, so wet – or to deconstruct them, expose “the violence of sentimentality” (Berlant 62), show “how compassion towards the other’s suffering might sustain the violence of appropriation” (Ahmed 74). These are not moves I want to make. A guiding assumption of this essay is that there is never a unilinear trajectory between feelings and politics. Any particular affect or set of affects may be progressive, reactionary, apolitical, or a combination thereof, in a given situation; compassionate politics are no more necessarily bad than they are necessarily good. On the other hand, “not necessarily bad” is a weak basis for a political movement, especially one that needs to understand and negotiate the ways the enclosures and borders of late capitalism mass-produce bodies we can’t put names to, people outside familiar and recognisable forms of identity and subjectivity. As Etienne Balibar has put it, “in utter disregard of certain borders – or, in certain cases, under covers of such borders – indefinable and impossible identities emerge in various places, identities which are, as a consequence, regarded as non-identities. However, their existence is, none the less, a life-and-death question for large numbers of human beings” (77). Any answer to that question starts with our compassion – and our rage – at an unacceptable situation. But it doesn’t end there. References Ahmed, Sara. “The Politics of Bad Feeling.” Australian Critical Race and Whiteness Studies Association Journal 1.1 (2005): 72-85. Arendt, Hannah. On Revolution. Harmondsworth: Penguin, 1973. Balibar, Etienne. We, the People of Europe? Reflections on Transnational Citizenship. Trans. James Swenson. Princeton: Princeton UP, 2004. Berlant, Lauren. “The Subject of True Feeling: Pain, Privacy and Politics.” Cultural Studies and Political Theory. Ed. Jodi Dean. Ithaca and Cornell: Cornell UP, 2000. 42-62. Bureau of Immigration and Population Research. Illegal Entrants in Australia: An Annotated Bibliography. Canberra: Australian Government Publishing Service, 1994. Dauvergne, Catherine and Jenni Millbank. “Cruisingforsex.com: An Empirical Critique of the Evidentiary Practices of the Australian Refugee Review Tribunal.” Alternative Law Journal 28 (2003): 176-81. “False Refugees and Misplaced Compassion” Editorial. Quadrant 390 (2002): 2-4. Hage, Ghassan. Against Paranoid Nationalism: Searching for Hope in a Shrinking Society. Annandale: Pluto, 2003. Hall, Stuart. The Hard Road to Renewal: Thatcherism and the Crisis of the Left. London: Verso, 1988. Joint Standing Committee on Migration. Illegal Entrants in Australia: Balancing Control and Compassion. Canberra: The Committee, 1990. Mares, Peter. Borderline: Australia’s Treatment of Refugees and Asylum Seekers. Sydney: UNSW Press, 2001. Millbank, Jenni. “Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia.” Melbourne University Law Review 26 (2002): 144-77. ———. “Fear of Persecution or Just a Queer Feeling? Refugee Status and Sexual orientation in Australia.” Alternative Law Journal 20 (1995): 261-65, 299. Morrison, Paul. The Explanation for Everything: Essays on Sexual Subjectivity. New York: New York UP, 2001. Pendleton, Mark. “Borderline.” Bite 2 (2004): 3-4. “WAAG v MIMIA [2004]. HCATrans 475 (19 Nov. 2004)” High Court of Australia Transcripts. 2005. 17 Oct. 2005 http://www.austlii.edu.au/au/other/HCATrans/2004/475.html>. Citation reference for this article MLA Style McGrath, Shane. "Compassionate Refugee Politics?." M/C Journal 8.6 (2005). echo date('d M. Y'); ?> <http://journal.media-culture.org.au/0512/02-mcgrath.php>. APA Style McGrath, S. (Dec. 2005) "Compassionate Refugee Politics?," M/C Journal, 8(6). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0512/02-mcgrath.php>.

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.