Sibyl, The Women's College Academic Journal, Volume 3 2014

SIBYL

THE WOMEN’S COLLEGE ACADEMIC JOURNAL Volume 3 / 2014

Cover Image: Women’s College students on the top Main Balcony c.1959

EDITORIAL BOARD Dr Amanda Bell Dr Tiffany Donnelly Ms Alice Grandi Ms Rosemary Hancock Dr Tamson Pietsch Mr Chris Rudge

CONTACT DETAILS The Women’s College The University of Sydney NSW 2006 Australia Phone: +61 2 9517 5000 Web: www.thewomenscollege.com.au Published by: The Women’s College within the University of Sydney, Sydney, Australia 2014

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CONTENTS Introduction TAMSON PIETSCH iv At the precipice: the balconies of Women’s College 1910-1960 TIFFANY DONNELLY & TAMSON PIETSCH vii

STUDENT ARTICLES Ethnic policy in China: The case of the Uighur NICOLA ALROE Reviewing Henry Reynolds’ Frontier: Aborigines, Settlers and Land ROSEMARY STEWART Good Faith Bargaining: A compliance-based obligation in Australian industrial relations SOPHIE McPHATE The Matilda Effect: Gender difference, individual recognition and authority in science CLAIRE BARNES Instumentally conditioned learning and extinction in rats IMOGEN HINES UAVs and anti-Americanism in Pakistan JULIA KEYWORTH Family violence and Parenting Orders: The case for reform of the Family Law Act LINDSAY SCOTT

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Introduction Welcome to the third edition of Sibyl, a journal that showcases the academic achievements of the undergraduates of The Women’s College. Sibyl takes its name from the central character of a play commissioned in 1913 by Principal Louisa Macdonald to mark the college’s 21st anniversary. In Ancient Greek mythology, the Sibyls were female oracles or prophets, who carried the messages of the gods. Often speaking in riddles, they were creatures whose wisdom was not always understood in their own time, but whose words touched at deeper truths and justices.

This image of a wise woman of prophetic knowledge is a powerful one and one that in 1913 served to make a forceful point in a world in which women’s higher education was not yet the norm. In 2015 The Women’s College continues to be a place where the wise words of women are fostered and celebrated. Sibyl showcases the academic achievements of our very best students, revealing a little of the myriad intellectual activities that they pursue at College.

This world of ideas is not one only accessed in the laboratory or lecture-hall. It is in the informal social spaces of College, and in the wide-ranging conversations – about families and heart-ache and ambition as well as Australian history – that so much learning takes place. As our opening essay outlines, the balconies of The Women’s College have long been a special site for student sociability and study. Not public, but not quite private either, they offer students a place to relax, to experiment, and to engage with each other in a way not possible in more formal contexts. As such they are crucial spaces for education. On the threshold of the inner and outer life, their indeterminate and undefined character is precisely what makes them so precious.

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This journal is published thanks to the support of the College Council and the Principal Dr Amanda Bell. Its editorial board this year was comprised of the Principal, Dr Amanda Bell, Vice Principal, Dr Tiffany Donnelly, the Senior Research Fellow, Dr Tamson Pietsch, and the Teaching Fellows, Mr Chris Rudge, Ms Rosemary Hancock, Ms Alice Grandi and Ms Gabrielle Kemmis. The essays selected here serve only as an indication of the range and diversity of the academic work Women’s College residents undertake. Awarded High Distinctions, they were each composed as assignments for undergraduate units, and therefore reflect individual disciplinary conventions. As such they represent some of the best undergraduate work at the University of Sydney.

We have kept all editorial amendments to a strict minimum, and retained the original referencing styles (which therefore differ between essays).

So take Sibyl out into the sunshine and onto a balcony, and enter for an hour or so the world of ideas in which our students engage and excel.

TAMSON PIETSCH Senior Teaching Fellow Editor-in-Chief

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At the precipice: the balconies of Women’s College 1910-19601 DR TIFFANY DONNELLY, VICE PRINCIPAL DR TAMSON PIETSCH, SENIOR TEACHING FELLOW

Balconies have long been a distinctive feature of the buildings at Women’s College. But embracing its original Sulman and Power Main Building, The Maples wing purchased in the first decades of the twentieth century, and the later Cottage and Langley additions, they are also repositories of memory for students past and present. In oral history interviews undertaken during the past five years, alumnae of the College have fondly recalled hours spent studying, sunbaking, or simply relaxing and conversing with College friends over a “brew” in these shared spaces. The College is fortunate to have in its possession an extraordinary photographic archive of life on the balconies of the Main and Maples wings between the first and middle decades of the twentieth century, and these pictures have inspired this essay. Many of these photographs are held in personal albums donated to the College, or have come to light from private collections over the course of the College’s oral history project. As such they are, for the most part, delightfully candid windows into moments of time captured through a technology that in this period was becoming increasingly accessible. The essay references recent literature about thresholds and verandahs to argue that the College balconies functioned as liminal spaces for students. Sitting between the interior and the exterior, public and private domains, they

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The authors would like to thank the alumnae who generously offered photographs from their collections for this article, as well as the indefatigable team of oral history interviewers whose herculean efforts are but minimally reflected in this article: Merilyn Bryce, Penny Cameron, Robyn Dalton, Leonie Day, Rachel Grahame, Angela Nordlinger and Joanna Tapper.

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became sites of play, experimentation and performance, as well as places of study and sociability for generations of students. The photographs of life on balconies in the College archive convey a vision of unfettered female space engendered by the liberation of tertiary education to women, and by the unique experience of living in an institution dedicated to nurturing that enterprise.

Historians and theorists of art and literature ascribe symbolic significance to the space of the balcony. Paintings depicting women on balconies position them as spectators to the action of ‘real’ life, their virtue screened and protected from view and held suspended and safe within the physical confines of the balcony rail. While Virginia Woolf read a dark Shelleyan symbolism in the balcony as a place at the edge of the abyss, signifying for her the edge of reason and the end of existence (McGavran 71), Shakespeare’s Juliet immortalised the balcony as a stage for dreamy desire and sexual assignation. While occasionally playing with the literary and art-historical trope of the balcony (fig 1), the collection of photos of women on College balconies represents a distinct set of disruptive counterpoints to the view of femininity in suspended animation. Instead, as literal extensions of a new kind of architectural entity, the College balconies are sites of female agency, ripe for “playful possibilities” (Stevens 73). Often showing women quite literally perched on the precipice of the railing, the photographs can be read as part of the narrative of tertiary education in Australia. They capture women about to step beyond the bounds of the interior domestic sphere and into the outside world and the undiscovered possibilities that lay in wait beyond their student years.

Architecture for women Balconies were key design elements central to the architectural philosophy of the architect John Sulman. Together with his partner Joseph Porter Power, Sulman won the competition for the design of the Women’s College in 1892. It was no accident, then, that the original College building was to be graced by wide sweeping balconies on its upper two floors, and an elegant colonnaded verandah or loggia on the ground floor. Sulman abhorred the common colonial practice of appending verandahs to dwellings, commenting in an 1887 piece for the Australian Builder and Contractor News that the prevailing flimsiness of Australian verandahs made them look like “an afterthought” (qtd Drew 78). Sulman articulated the first aesthetic analysis of the verandah in Australia. His writings reveal

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his penchant for the more considered, classical-style colonnaded verandah: a preference clearly reflected in his design for the Women’s College (Drew 78). The balconies of Main were fashioned as shared spaces onto which a number of student rooms (up to eight in the original design) spilled out through French doors, intimately linking private and communal spaces within the design scheme.

In articulating his vision for the Women’s College, Sulman had few antecedents: architecture for a women’s college was a relatively new frontier in Australia. As Zeny Edwards remarks in her architectural history of the College: The College architects Sulman and Power broke away from the sandstone Gothic Revival style of the University buildings. More domestic in style and arrangement, the College lacked institutional formality and promoted collegiality only in the sense of sharing, rather than in pomp and ceremony. The library and common room were essentially domestic, even spartan…. In effect the College was more akin to a somewhat large family residence than an academic institution. It was not surprising that the Principal referred to the College as ‘the house’, an indication perhaps of her feelings on the matter. (13) While the College buildings may have been domestic in style, this selfconscious styling reflects an ambivalence which belied the activity within. Unlike a household, College students were liberated from most domestic arrangements and instead busied themselves with intellectual pursuits. Marjorie Theobald has noted that Women’s College was “a site of new possibilities of the feminine” in colonial New South Wales (88). The previously uncharted territory of women at university opened up a space for experimentation, just as the architecture of the College, including the balconies, gave rise to new possibilities for exploration and behaviour. From the time the Main Building welcomed its first students in 1894 until after the middle of the century, students were not allowed to admit male visitors beyond the little room on the ground floor known as the “Mousetrap,” and therefore the balconies, like the majority of the College interior, were wholly female spaces. Elevated above the street and for the most part beyond the reach of the male gaze, they were semi-private domains which allowed for a loosening of inhibitions.

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Health and hygiene If the College was domestic in its styling and detail, it was grandly institutional in scale. The rooms in Main were large and airy and the westfacing balconies were expansive (fig 2). In November 1893 the Town and Country Journal published an article on the opening of the College which paid detailed attention to the architecture, and made particular mention of the size and function of the balconies: The arrangement of the balconies, back and front of the students’ rooms, is a most happy idea for health and pleasure. The ventilation is perfect, as are also all the sanitary arrangements, all care having been taken to attain utility, safely, and good appearance.

The bathrooms are on the balconies, and are each 9ft by 6ft, being light, airy and lead floored… The front balconies are 87ft by 9ft, and the back balconies 60ft by 6ft 6in. (Qtd in Edwards 18).

The prosaic detail of the description is telling: health and sanitation were of great public concern in the 1890s and the practicality of the College balconies as well-ventilated open-air spaces performed a hygienic function as well, very much a preoccupation of the time as illnesses such as Spanish flu, smallpox and tuberculosis were still real threats to public health.

Recent literature on the architecture of the sanatoria at the beginning of the twentieth century states that porches, balconies and sunning galleries were promoted as ideal spaces for the efficacy of the rest cure for tuberculosis patients (Adams et.al. 912). A College album from the first two decades of the twentieth century shows a photograph of a reclining student propped against a pillow on the front balcony of Main with the handwritten explanation: “The Smallpox Scare. After vaccination.” A comical counterpoint to this image comes two pages later in the album, where the medical students’ skeleton “Andy” was also photographed sunning himself on the balcony (fig 4).

Thresholds and theatricality Balconies straddle inside and outside, public and private space, and as such they are akin to the space of the threshold. Quentin Stevens has argued that “[a] threshold is a point where the boundary between inside and outside can be opened; space loosens up, and a wide range of perceptions, movements and social encounters become possible” (73). He continues:

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At building thresholds which mediate between different behavioural settings, between public and private realms and between indoor and outdoor space, people experience release from the limitations and order of spaces where they have defined roles and commit their attention to specific tasks.... While buildings often provide a sense of order, when one steps out onto the threshold, one is on the loose. (74) Interestingly, Stevens notes that thresholds are often sites at which photographs are taken (74-75), and when people cross thresholds between private and public space, their actions can be “exuberant, expressive of freedom, of escape from controls on their use of time and space� (81).

The physical layout of the balcony, with its rectangular demarcation of space, made it a kind of stage for dramatic play as well as an aperture for a photographic frame. While many of the College balcony photographs show women engaged in relaxed social activity (see cover image), other photographs capture moments that are particularly uninhibited or even deliberately provocative. The prevailing physical and social conditions of the balconies gave rise to playful homosocial behaviour, as well as instances of dress-up and relative undress, all of which were made safe by the elevation of the balconies above the street. Students happily photographed each other sunbaking scantily clad (fig 5), attempting the latest dance steps (fig 6), embracing and wrestling (fig 7 & 8), as well as roller-skating with pillows tied to their backsides (fig 9), enjoying the drama of essay completion (fig 10), snake charming (fig 11) or simply amusing themselves with comical poses (fig 12). The freedom from inhibition characterised by these photographs that span several decades of College life, constructs the balcony as a safe female space where playful behaviour could be captured and contained, and where youthful exuberance found a stage and lens for private recording.

Study spaces As an academic institution, study was clearly the prime preoccupation of College inhabitants and the sunny College balconies lent themselves to collective and individual intellectual activity. There are numerous photographs of women studying or reading on the Main and Maples balconies (e.g. fig 13 & 14), and many alumnae interviewed for the oral history project recalled the pleasant combination of study and sunbathing on the balconies during their years at College. Just as the space of the

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threshold has been constituted as a liminal space which blurs normal boundaries and signifies rites of passage or changes in status, the balcony photos themselves capture students at transitional or liminal moments: between adolescence and adulthood, on the way to becoming citizens, between academic and professional life. By studying outside but within the constrained spaces of balconies, the serious business of the university student is lightened with a sense of leisure or play.

View from the precipice Of all the many photographs taken on the Women’s College balconies, perhaps the most recurrent pose is of women sitting right on the balcony precipice. The original railings of the middle and top floors of the Main building were broad and perhaps readily invited a sitter, even despite the vertiginous height above the grass verge below. The proportion of pictures taken with the students arranged on the edges of balcony railings (e.g. figs 15-18) invites a reading of these images as emblematic of young women taking risks and pushing society’s expectations of their gender in the first half of the twentieth century. Whether sitting or reclining in these precarious places, these young women appear relaxed, comfortable and assertive. They sit on the edge of their College boundary, poised, assured and excited, with uncharted territory ahead. In this sense, they serve as spaces that, as architectural historian Philip Drew has argued in relation to the verandah, resolve identity: “perhaps more than any other single metaphor in our culture, the veranda supplies the key to how Australians relate to their contiguous universe.” (vii). Consideration of the photographs women students themselves made during their time at College, allows us to see that, as suntraps of memory, of leisure, study and play, balconies were key educational sites. The view from the precipice was a confident one.

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WORKS CITED Adams, A., Schwartzman, K., Theodore, D. “Collapse and Expand: Architecture and Tuberculosis Therapy in Montreal, 1909, 1933, 1954.” Technology and Culture 49.4 (2008): 908942.

Drew, Philip. Verandah: Embracing Place. Sydney: Angus & Robertson, 1992.

Edwards, Zeny. The Women’s College within the University of Sydney: An Architectural History 1894-2001. Revised ed. The Women’s College, 2008.

McGavran, James Holt Jnr. “Shelley, Virginia Woolf and The Waves: A balcony of one’s own.”

South Atlantic Review 48.4 (1983): 58-73.

Stevens, Quentin. “‘Betwixt and between’: Building thresholds, liminality and public space.”

Loose Space: Possibility and Diversity in Public Space. Eds Karen Franck and Quentin Stevens.

London: Routledge 2006.

Theobald, Marjorie R. Knowing Women: Origins of Women’s Education in Nineteenth-Century Australia. Cambridge UP 1996.

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Fig 1. In a rare “staged” balcony shot with a professional photographer, Soldiers of the American cruiser U.S.S. Helena serenade students from the front steps of Main, 1960.

Fig 3. The Smallpox Scare: After vaccination, 1913.

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Fig 4. “Andy” sunning himself on top Main balcony, 1913.

Fig 5. Sunbaking, c.1960.

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Fig 2. Top floor Main balcony looking over Royal Prince Alfred Hospital, 1913.

Fig 6. Students dancing, c.1913.

Fig 7. J. Owen Harris and K. English, c.1913.

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Fig 10. “Whit” (Margaret Whitfield) finishes an essay, 1946.

Fig 12. Piggyback, 1948.

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Fig 11. Patricia Brockbank charms a snake, 1948.

Fig 9. “The roller skating craze”; top floor back balcony c.1913.

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Fig 15. J. Owen Harris and K. English, c.1913.

Fig 16. Eldwyth Edgell and Ann Hurley, c.1944.

Fig 13. Pacing the balcony in study: Edna Mackenzie, c.1923.

Fig 14. Yvonne Isaac studying on the Maples balcony, 1946.

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Fig 18. Angela Cookson 1962.

Fig 17. Yvonne Isaac 1946.

Fig 8. “Matwomen” 1946.

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Ethnic policy in China: The case of the Uighur NICOLA ALROE Arts Law 3rd year China asserts that the purpose of ethnic policy is to “open up a new era in which all ethnic groups on the basis of equal rights unite of their own accord ... [and] dedicate to the building of a strong, prosperous, democratic and civilised new China.”1 To bring about the state’s vision of all China’s ethnic groups living in unity and equality, a suite of seemingly liberal ethnic policies was enacted. Ethnic equality is even recognised in the constitution.2 Unfortunately, reality readily clouds this rosy picture: ethnic policies have been enforced to varying extents, ignored or totally re-written ad hoc as the state responds to social circumstances.3 In essence, policy is adapted according to the nature of the ethnic consciousness of each minority. That is, the degree to which a group self-identifies as different from the majority.4 Because of China’s ethnic diversity, the content and effectiveness of ethnic policies varies significantly between regions. Rather than attempting to survey the effectiveness of a multitude of policies, this essay focuses on the effectiveness of policies implemented for the Uighur minority of 1

“Nationalist Minorities Policy and its Practice in China,” Information Office of the State Council Of the People’s Republic of China, accessed September 21, 2014, http://english. peopledaily.com.cn/whitepaper/1(1).html.

2

Colin Mackerras, “Tibetans, Uyghurs, and multinational ‘China’,” in Chinese Politics, ed.

Peter Gried and Stanley Rosen (London: Routledge, 2010), 222.

3

Elizabeth Van Wie Davis, Ruling, Resources and Religion in China (London: Palgrave Macmillon, 2013), 97.

4

Steven Harrel, “Civilising Projects and the reaction to them,” in Cultural Encounters on China’s Ethnic Frontiers, ed. by Steven Harrell (Washington: University of Washington Press, 1995), 28.

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Xinjiang. Ethnic policy is not just policy enacted for a specific ethnic group: it includes the way regular laws treat minorities differently. The essay explores social, legal and economic elements of ethnic policies in China. This is done to discredit the state’s pronouncement that the purpose of ethnic policies is to advance ethnic equality. If this pronouncement is accepted as true, then ethnic policies are entirely ineffective. This essay develops an alternative hypothesis about the purpose of ethnic policies: it contends that in China ethnic policies are adapted to ensure social stability, maximise economic growth, and thereby increase the state’s power and prestige. Yet even if this alternate purpose is accepted, the case of the Uighur minority demonstrates that ethnic policies are ultimately ineffective because they increase instability and inequality.

Context: Introducing the Uighur Minority and Chinese Ethnic Policy The Uighur people are Turkic Muslims, and very dissimilar to the Chinese Han majority.5 A fundamental part of Uighur identity is the practice of Islam.6 Before forced incorporation in 1949, the region was only loosely controlled by the imperial and nationalist regimes. The name “Xinjiang” – meaning new dominion – reflects the region’s relatively recent incorporation into the nation of China. Xinjiang is the country’s largest oil and gas producing region, and is strategically located as the gateway to Central Asia. Uighurs have high unemployment and poverty rates, a life expectancy ten years lower, and an income gap of 3.24 compared to Han. Han-Uighur relations are based largely on negative stereotypes, resentment and distrust.7 Chinese ethnic policies have evolved over time. The blanket-ban on religious observance imposed during the Cultural Revolution greatly suppressed ethnic consciousness. Subsequent liberal cultural reforms enacted by Deng Xiaoping during the 1980s stimulated strong ethnic revival.8 A unifying feature of ethnic policies is their status as “civilising

5

Mackerras, “Tibetans, Uyghurs, and multinational ‘China’,” 226.

6

Colin Mackerras, China’s Minority Cultures (Melbourne: Longman, 1995), 208.

7

Human Rights Watch, “We Are Afraid to Even Look for Them - Enforced Disappearances in the Wake of Xinjiang’s Protests,” (New York: 2009), 9-10.

8 Mackerras, China’s Minority Cultures, 8-11.

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projects”. In a civilising project, a powerful centre claims to possess a superior civilisation and promises to extend it to peripheral minority groups who accept or are forced to accept centre domination. The classification process implicitly involves the objectification of ethnic groups according to their place on a civilisational scale.9 In this way, ethnic policy reflects the enduring influence of Confucianism in Chinese society: projects are founded on the assumption of an innate hierarchical order of morality, with Han civilisation seen as superior.10 Ethnic policies also reflect the Chinese state’s anxiety about preserving unity, a preoccupation stemming from countless historical invasions and incursions upon state sovereignty.11 Some integration occurs during a civilising project as minorities adopt desirable or strategically useful elements of centre culture. However, ethnic consciousness and identity are also heightened through the observation of differences between the centre and minority.12 A primary example is the Social Classification System: the Chinese state requires ethnic groups to compile a case to support their official recognition. The process of organising these cases can reawaken a sense of latent ethnic consciousness in minority groups. It is this binary effect – of simultaneous integration and heightened ethnic consciousness – that characterises the general effect of ethnic policy in China today. Xinjiang is a region where the forces of integration have been much weaker.13 From this general discussion, the problematic nature of the state’s pronouncement that ethnic policies promote equality should already be apparent.

Social Policy: Affirmative Action, Education and Religious Persecution The People’s Republic of China’s (PRC) ethnic social policy reads as relatively liberal: minority groups are given a degree of control over regional governments.14 Regional government jobs are subject to affirmative action and minorities are encouraged to join the army, the police, or to become 9

Harrel, “Civilising Projects and the reaction to them,” 9.

10

Ibid, 9.

12

Harrel, “Civilising Projects and the reaction to them,” 4-6.

11 Mackerras, China’s Minority Cultures, 224.

13

Jankowiak, “Ethnicity and Chinese Identity: ethnographic insight and political positioning,” 97-98.

14 Ibid.

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cadres. However, the best jobs in all these organisations are reserved for Han. Moreover, Han can pay corrupt officials to classify them as a minority to receive affirmative action benefits. These examples discredit the state’s assertion that ethnic policies create equality.15 The central government has previously made some attempts to include Uighur voices in the policy-making process. For instance, Uighur activist Rebiya Kadeer was hired as a special government consultant. Unfortunately, these attempts have been more tokenistic than substantive: Kadeer’s consultancy term was a guise for greater surveillance of her actions.16 Any influence of Uighurs in government is apparently ineffectual: Uighurs, for example, have been unable to prevent the central government from relocating fifty-thousand families and razing their historical homeland, the old Kashgar market in 2009.17 Official policy proclaims that minorities can influence curricula and use their native language in education.18 However, from 2002 the Uighur language was declared “old fashioned” and Mandarin was imposed across all Xinjiang schools.19 Even before this, Mandarin had been strongly encouraged and necessary for college admission.20 The central government insists upon the teaching of orthodox histories which excise ethnic histories to encourage unity.21 Uighur ethnic social policies such as affirmative action and education policies have therefore not furthered equality. Nor have they fostered the social stability required for economic

15 “We Are Afraid to Even Look for Them - Enforced Disappearances in the Wake of Xinjiang’s Protests,” 20.

16 Jeff Daniels, “Chapter One,” The Ten Conditions of Love, directed by Jeff Daniels (Melbourne: Acrimedia, 2009), DVD. 17 The Economist, “A Chechnya in the making; China’s far west,” The Economist, August 9, 2014, accessed September 21, 2014, http://www.economist.com/news/leaders/21611067iron-fist-xinjiang-fuelling-insurrection-chinas-leadership-must-switch-tactics.

18 19 20 21

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“Law of the People’s Republic of China on Regional National Autonomy,” National People’s Congress, accessed September 23, 2014, http://www.npc.gov.cn/englishnpc/Law/200712/13/content_1383908.htm.

“We Are Afraid to Even Look for Them - Enforced Disappearances in the Wake of Xinjiang’s Protests,” 10.

The Economist, “A Chechnya in the making; China’s far west.”

Jankowiak, “Ethnicity and Chinese Identity: ethnographic insight and political positioning,” 109.

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growth. Rather, they have undermined stability by deepening ethnic tensions.

The law on the autonomy of nationality areas prohibits religious persecution so long as religion is not used to undermine unity.22 However, the state has used the War on Terror as a paradigm shift to legitimate repression of moderate Islamic religious practice.23 Official rhetoric focuses on destroying the three evils of terrorism, extremism and separatism, but policy targets Muslims indiscriminately. Authorities are persecuting moderate-Muslims because religion has become “the most important site” of feelings of ethnic consciousness,24 and because it offers “a symbolic form of resistance to Chinese rule in a region where other resistance is impossible”.25 Prior to the Beijing Olympics, 23 types of illegal religious activity – including traditional religious weddings and praying in public – were outlawed. The state also restricted pilgrimage to Mecca and limited worship to supervised mosques. This fostered the growth of radical, underground mosques.26 There may well be terrorists in Xinjiang: from March to May 2014 the region was rocked by knife attacks and targeted bombings.27 However, state repression is now fuelling the extremism. In July, riots began when dozens of women and girls were arrested for refusing to remove their headscarves. The result was two days of riots and retaliatory killings by the Uighur. For the remainder of the month – that of Ramadan – the state reacted by conducting house searches, increased identity checks and refusing to allow workers and students to fast or pray.28

22 “Law of the People’s Republic of China on Regional National Autonomy.”

23 Daniels, The Ten Conditions of Love.

24 Mackerras, China’s Minority Cultures, 207.

25 Simon Denyer, “China’s war on terror becomes all-out attack on Islam in Xinjiang,” The Washington Post, accessed September 20, 2014, http://www.washingtonpost.com/world/ chinas-war-on-terror-becomes-all-out-attack-on-islam-in-xinjiang/2014/09/19/5c5840a41aa7-4bb6-bc63-69f6bfba07e9_story.html.

26 Ibid.

27 The Economist, “A Chechnya in the making; China’s far west.”

28

Denyer, “China’s war on terror becomes all-out attack on Islam in Xinjiang.”

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The persecution of moderate-Muslims cannot sensibly be understood as encouraging ethnic equality. Rather, the policy of indiscriminate repression can be seen as an attempt to maintain maximum social stability and economic activity. That journalists were denied access and international communications cut suggests the state was trying to prevent reputational damage that would harm their international prestige.29 The religious elements of Uighur ethnic policy are largely ineffective: as long as the state persecutes moderates, extremism will rise, social stability and economic activity will be disrupted, and stories of repression will continue to leak into the international media.

Legal Policy: The 2009 Riots, Ilham Tohti and Human Rights Violations Events following the 2009 riots and the case of Uighur activist Ilham Tohti illustrate how ethnic legal policies compound minority inequality, threaten social stability and damage state prestige by exposing China to international condemnation from human rights groups. China is increasingly concerned with accruing power and prestige in the realm of international affairs. In pursuance of this aim, China is signatory to human rights treaties that theoretically limit the repressive capacity of the state, outlaw torture and mandate due process requirements. However, the influence of these treaties on ethnic legal policy is dubious.30 The July riots began as protests about the killing of Uighur factor workers.

In the days that followed, reports emerged of security forces herding dozens of, young Uighur men at random into open spaces, beating them, and loading them into police vans. This culminated in 43 known “enforced disappearances.” Enforced disappearances, which occur when a state detains someone without admitting it, are a violation of international law because they increase the probability of procedural abuse and torture.

Moreover, they are also a violation of domestic Chinese procedural law.31

29 Ibid.

30 31

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Minxin Pei, “Rights and resistance: the changing contexts of the dissident movement,” in Chinese Society: Change, Conflict and Resistance, ed. by Elizabeth J Perry and Mark Selden.

(London: Routledge, 2000), 35.

“We Are Afraid to Even Look for Them - Enforced Disappearances in the Wake of Xinjiang’s Protests,” 6-9

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Following the disappearances, China’s prestige was tainted by heavy criticisms from Human Rights Watch.

Famous Uighur activist, Ilham Tohti, was charged with separatism in early 2014. Tohti is classified as a security or political detainee, and is therefore afforded fewer procedural rights under Chinese law. However, procedural rights are even more alarmingly limited in ethnic minority regions. For this reason, issues of jurisdiction were overlooked by central government bureaucracies to allow Tohti’s case to be transferred to Xinjiang. Tohti was denied access to legal counsel for five months and suffered torture in the form of food deprivation.32 Tohti’s arrest and potential conviction pose a massive threat to social security. Tohti was a moderate activist who opposed separatism (he personally identified as Chinese) and violence. He campaigned for greater dialogue between Uighurs, Han and the central government to overcome misunderstandings.33 If such a peaceful and moderate activist can be convicted, Uighurs will have little incentive to cooperate with the state and more reason to damage it through acts of terrorism. These examples illustrate the way ethnic legal policies compound inequality: Uighurs are denied the legal rights usually afforded to Chinese citizens. They also show that ethnic legal policies endanger social stability and state prestige.

Economic Policy – The Western Development Project and Trade Liberalisation Since Deng Xiaoping declared “to get rich is glorious,” maximising economic growth has been a primary goal of the central government.34 The effects of the Western Development Project and liberalised international trade show that economic policies have impacted minorities by increasing social instability and ethnic inequality.

The Western Development Project (WDP) was launched during the 1980s to speed up development in western provinces and quell ethnic

32 “Uighur Scholar’s Trial a Travesty of Justice,” Human Rights Watch, accessed September 21, 2014, http://www.hrw.org/news/2014/09/15/china-uighur-scholar-s-trial-travesty-justice.

33

“My Ideals and the Career Path I Have Chosen,” Ilham Tohti, accessed September 21, 2014, http://chinachange.org/2014/04/06/my-ideals-and-the-career-path-i-have-chosen/.

34 Daniels, The Ten Conditions of Love.

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discontent.35 The policy took the form of targeted spending on infrastructure for transport, communications and industry.36 The state believed that “if the western regions … [had] sufficient development, then the minorities [would] prosper, be less restive, give less support to separatist activities, and be more integrated into the fortunes – both economic and political – of China.”37 However, because of tacit state support for mass Han migration to Xinjiang prompted by the development, many of the WDP’s expected benefits were never realised. The mass migration created ethnic tension as Han and Uighurs competed for jobs, housing and land.38 Discrimination against Uighur workers is rife, causing high ethnic unemployment rates. Following the 2014 Xinjiang terrorist attacks, the state recognised the link between unemployment and social instability: Xi Jinping mandated that 25% of SOE jobs be awarded to Uighurs.39 It is unlikely this will be enough to address the deeply embedded inequality. Under the WDP, minorities have moved backwards: Uighurs are increasing reverting to traditional agricultural industries. Rebiya Kadeer has suggested the government’s failure to distribute the benefits of development is tactical, because poverty disables ethnic activism.40 The negative impact of the WDP on equality is further complicated by the fact that Xinjiang has the highest oil and gas production of all provinces.41 China needs these natural resources to fuel economic development, and values the certainty afforded by domestic sources.42 The presence of natural resources complicates the governance of Xinjiang because the state, anxious to hold onto these reserves, is more willing to engage in repressive practices that prompt resistance.43 Thus, while the WDP created extensive growth, it also worsened inequality and instability.

35 Van Wie Davis, Ruling, Resources and Religion in China, 7.

36 Mackerras, China’s Minority Cultures, 15.

37

Van Wie Davis, Ruling, Resources and Religion in China, 100.

39

The Economist, “A Chechnya in the making; China’s far west.”

38 Jankowiak, “Ethnicity and Chinese Identity: ethnographic insight and political positioning,” 101.

40 Daniels, The Ten Conditions of Love.

41 Ibid.

42

Van Wie Davis, Ruling, Resources and Religion in China, 7.

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43

Ibid, 5.

Liberalised international trade policies are also causing deepened inequality and instability. Liberalised trade is a key part of globalisation, which can have the effect of breaking down cultural differences. Alternatively, considering that Xinjiang is China’s link to Central Asia, trade could strengthen Uighur consciousness through contact with other Muslim cultures.44 The WDP was founded on the idea that economic development would foster social stability.45 However, economic development and trade with central Asia is also allowing extremist influence, drugs and weapons to flow into the country, severely threatening social stability. Moreover, the commodities being traded between Xinjiang and Central Asia are largely natural resources: an industry dominated by Han owners and workers, meaning that the benefits of trade will not be distributed to Uighurs. For these reasons, trade liberalisation does nothing to help ethnic equality and undermines social stability.

Conclusion This essay has argued that, contrary to the official state pronouncement that ethnic policies advance equality, in China these policies are actually adapted to maximise social stability and economic growth, and to increase the state’s power and prestige. Ethnic policies cannot advance equality because they are grounded in the discourse of civilising projects. That is, they are founded on the assumption of Han superiority. However, Uighur ethnic policies have not been overly effective at achieving the proposed alternative purpose of maximising social stability, economic growth, power or prestige, either. Social policies have undermined stability by fuelling ethnic tensions and encouraging religious extremism. Legal policies have exposed China to international condemnation. Although economic policies have achieved extensive growth, the benefits of growth were not shared with Uighurs. Development is compounding social and economic inequality.

It is time for China to re-evaluate Uighur ethnic policies. China’s perpetual fear of separatism could be relieved through recognition that identity can be multi-layered: strong ethnic consciousness does not necessarily equate

44 Mackerras, China’s Minority Cultures, 239.

45

Van Wie Davis, Ruling, Resources and Religion in China, 97.

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to a desire for statehood.46 Perhaps the state could follow the advice of de Tocqueville and give the Uighurs “a stake in the system”.47 The starting point would be to ensure that the benefits of economic development are shared with Uighurs. By attaching the economic prosperity of the Uighurs to state success rather than oppressing and alienating them, the state would better be able to pursue social stability and economic growth, and it would accrue even more power and prestige. It may even achieve a measure of equality.

46 Jankowiak, “Ethnicity and Chinese Identity: ethnographic insight and political positioning,” 109.

47

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Ibid, 93.

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BIBLIOGRAPHY Barabantseva, Elena. “Development as Localisation.” Critical Asian Studies 41 (2009): 225-254.

Daniels, Jeff. The 10 Conditions of Love, directed by Jeff Daniels (Australia: Acrimedia, 2009) DVD. Denyer, Simon. “China’s war on terror becomes all-out attack on Islam in Xinjiang.” The Washington Post, September 19, 2014. Accessed September 20, 2014. http://www.washingtonpost.com/world/ chinas-war-on-terror-becomes-all-out-attack-on-islam-in-xinjiang/2014/09/19/5c5840a4-1aa74bb6-bc63-69f6bfba07e9_story.html.

The Economist. “A Chechnya in the Making – China’s Far West.” The Economist, August 9, 2014.

Accessed September 20, 2014. http://www.economist.com/news/leaders/21611067-iron-fistxinjiang-fuelling-insurrection-chinas-leadership-must-switch-tactics.

Harrell, Steven. “Civilising Projects and the reaction to them.” In Cultural Encounters on China’s Ethnic Frontiers, edited by Steven Harrell, 1-37. Washington: University of Washington Press, 1995.

Human Rights Watch, We Are Afraid to Even Look for Them - Enforced Disappearances in the Wake of Xinjiang’s Protests. New York, 2009.

Human Rights Watch. “Uighur Scholar’s Trial a Travesty of Justice.” Accessed September 21, 2014. http://www.hrw.org/news/2014/09/15/china-uighur-scholar-s-trial-travesty-justice.

Information Office of the State Council Of the People’s Republic of China. “National Minorities Policy and its Practice in China.” Accessed September 21, 2014. http://english.peopledaily.com. cn/whitepaper/1.html.

Jankowiak, William. “Ethnicity and Chinese Identity. ” In The Cambridge Companion to Modern Chinese Culture, edited by Kam Louie, 91-114. Cambridge: Cambridge University Press, 2008.

Kadeer, Rabiya. “Internet Restored, But the evils of Han Chauvinism, Party-State Despotism and Bankrupt Communism Remain.” The Huffington Post, May 19, 2010. http://www.huffingtonpost. com/rebiya-kadeer/internet-restored-but-the_b_581992.html.

Kadeer, Rabiya. “When History Catches Up With Authoritarianism.” The Huffington Post, March 7, 2011. http://www.huffingtonpost.com/rebiya-kadeer/when-history-catches-upw_b_832246.html.

Mackerass, Colin. China’s Minority Cultures. Melbourne: Longman, 1995.

Mackerras, Colin. “Tibetans, Uyghurs, and multinational ‘China’: Han-minority relations and state legitimation.” In Chinese Politics: State, Society and the Market, edited by Peter H Gries and Stanley Rosen, 222-242. London: Routledge, 2010.

National People’s Congress. “Law of the People’s Republic of China on Regional National Autonomy.” Accessed September 23, 2014. http://www.npc.gov.cn/englishnpc/Law/2007-12/13/ content_1383908.htm.

Pei, Minxin. “Rights and resistance: the changing contests of the dissident movement.” In Chinese Society: Change, Conflict and Resistance, edited by Elizabeth J Perry and Mark Selden, 31-56.

London: Routledge, 2000.

Tohti, Ilham. “My Ideals and the Career Path I Have Chosen.” Accessed September 21, 2014. http://chinachange.org/2014/04/06/my-ideals-and-the-career-path-i-have-chosen/.

Van Wie Davis, Elizabeth. Ruling, Resources and Religion in China. London: Palgrave Macmillon, 2013.

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Reviewing Henry Reynolds’ Frontier: Aborigines, Settlers and Land ROSEMARY STEWART Advanced Science 3rd year Henry Reynolds’ Frontier: Aborigines, Settlers and Land (1987) is the sequel to his best known book The Other Side of the Frontier (1982). Frontier scaffolds a broad history of the physical and ideological interface between settler colonials and Indigenous Australians. The text primarily engages with the first 150 years of colonisation in order to highlight that contemporary socio-political issues regarding land and ideology are not new paradigms.

The first two sections, ‘Conflict’ and ‘Ideology’, set the scene for a deeper analysis of the land rights movement in the final section ‘The Land’.

Reynolds’ emphasis on the importance of land pervades the book as he examines a history in which settler colonials were acutely aware of conflict, recognised dispossession and the flaws of racial ideology. The legal and ethical implications and dilemmas of European colonisation were not ignored by settler colonials. As a highly anticipated sequel, Frontier received largely positive reviews at the time (see reviews Crosby, 1987; Denoon, 1988; Read, 1987) and could be considered as a stand-alone text. Read in 2014, Frontier is accessible and engaging although, as we will go on to consider, the zeitgeist of 1980s Australia and Reynolds’ position in the Australian socio-political landscape does need consideration when digesting his text.

Reynolds himself is a character in the Australian historical story. The space he occupies was initially carved out through his scholarly work as an historian, particularly in the 1980s where his books were accessible texts for both historians and the interested public. The central characteristic of Reynolds’ work has been an analysis of conflict through what Attwood terms the ‘‘frontier’ paradigm’ (1990). Attwood argues that the emphasis on

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conflict is fundamental to Reynolds’ model of viewing history but it can be at the expense of more nuanced readings of historical events in their context (Attwood, 1990; Attwood, 2011). Particularly in the first two sections of Frontier, Reynolds’ narrative style is one of seamless movement between historical time and geographical space. For example, when Reynolds argues that for the Europeans there was a communal sense of unease on the frontier, he travels from 1788 to 1889 within the space of two paragraphs subtitled ‘The blacks are coming’ (p. 12-13). Through the use of poignant subheadings and rapid fire layers of historical examples he achieves three things: he covers vast swathes of historical material, the text is divided into digestible segments and there is a strong overarching theme of Australian frontier experience being one of conflict, ideological justifications and land rights. As noted by Crosby (1987), these generalisations allow for the clear expression of outrage directed towards the holistic legacy of Australia’s colonial heritage. His style creates a holistic sense of history to present to his audience.

Yet Reynolds’ strategy of broad brushstrokes of narrative history coupled with an omniscient narrative voice is at the expense of a nuanced appreciation of local histories and an analysis of meaningful differences and diversity within contextualised events (Attwood, 1990). Curthoys also has highlighted that in The Other Side of the Frontier Reynolds’ ‘virtually absent, that is to say omniscient’ narrative voice leaves the audience with a sense that ‘the spirit of the book is to insist on its uniqueness, its non-location in existing historical scholarship’ (1983). Attwood similarly argues that such criticism is sustained with regards to Frontier as Reynolds’ ‘broad canvas’ approach leaves historians and historiography without an integrated history where Indigenous history is no longer that of the marginalised (Attwood, 1990). Reynolds’ style of writing ‘liberation history’ in Frontier and across his body of scholarship led him onto the stage of public historical debate that has marked the 25 years since its publication (Ritter, 2008).

Frontier was published the year before Australia’s Bicentennial was to be celebrated and one and five years before Mabo vs Queensland (1) and (2) (respectively) were decided in the High Court. A new body of scholars concerned with Indigenous history were attempting to break what Stanner termed ‘The great Australian silence’ (Curthoys, 2008). Was it the ‘right’ time to have a history written, as Reynolds’ did, focusing on land and questioning the moral and legal assumptions such as that of terra nullius? Reece (1987) probably did not come across Frontier before the publication of his article

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Inventing Aborigines, yet his criticism of the dispossession-resistance interpretation of Aboriginal-European relations still holds. Reece reminds readers that ‘when the British first came to Australia in the late eighteenth century there were no Aborigines (with a capital ‘A’)’ and thus, history from a frontier and conflict-over-land paradigm can over-generalise and oversimplify nuanced and complex histories (Reece, 1987). Reynolds, assuming and then finding similarities across frontier attitudes and behaviours, adds to a discourse where Indigenous Australian histories are homogenised into a history. Thus Reynolds’ style in Frontier may need to be deconstructed as a product of his time in 1980s Australia.

Nevertheless, the criticisms of Reynolds’ history in Frontier and other works do not necessarily undermine the value of the text. Reynolds acknowledges that Frontier, albeit ‘sound in scholarship,’ ‘is about the present as well as our colonial heritage…inspired by [a] passion for the past and concern for the future’ (1987, p. ix). Accepting that the text along with his other works are intended to be a part of popular and academic discourse, Reynolds opens up space for historians to then take the resistance-dispossession model and apply it analytically to local histories, thus setting the stage for further research and richer discussion. Although Attwood (2011) sees Reynolds’ work of ‘history’ in the singular as diametrically opposed to ‘histories’ which enable a celebration of diversity and heterogeneity, Frontier in particular has a legacy in the land rights movement which is possible through Reynolds’ presentation of a pan-Australian history centred around land rights.

‘Part III The Land’ and the ‘Conclusion’ establish land as the common denominator to conflict after parts I and II establish that the land rights debate is certainly not novel. Reynolds argues from both a legal and moral standpoint that the public and judicial debate regarding Indigenous land rights should not end with Justice Blackburn’s 1971 judgement on Milirpum v. Nabalco.

The extinguishment of sovereignty and native title for the entire eastern part of the continent was attested to the discovery and settlement from 26th January 1788. Reynolds argues that not only does terra nullius contradict the historical record of settler colonials interacting and understanding Indigenous Australians’ complex relationships with land (see Governor Glenelg’s recognition of proprietary title in South Australia; Reynolds, 1987, p. 146149; p. 168), but also, the legality of an all-encompassing sovereign claim to the continent does not fit with international interpretations of common law.

He suggests that ‘the single most important element in a complex situation

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was the revolutionary concept of private property which the settlers brought with them from Britain’ (Reynolds, 1987, p.190). Reynolds argues that from this revolutionary idea, a set of radical changes have been imposed across the physical, social and political frontiers of life for Indigenous Australian communities and individuals.

The consequence of Reynolds’ history, framed in the frontier paradigm and arguing that the historical account contradicts assumption of extinguished native title, is felt in the High Court decisions reading Mabo in 1992 and the Wik Peoples in 1996 (Ritter, 2008). Frontier was not only a text for the academy, but also for all interested and invested Australians. As explored by Ritter, Reynolds’ work including Frontier and The Law of the Land (1987; 1987) had a direct and indirect influence on the outcomes and reading of common law and native title in Australia (Ritter, 2008). Both texts had strong central theses regarding land rights: that the assumption of extinguished native title and sovereignty was flawed. Thus contemporary readings of Frontier are contextualised and enriched by a knowledge of what has become the history of Australian history in addition to major political and judiciary events of the 1980s, ’90s and 2000s. Arguments against the status quo in 1987 have attracted extensive responses in the secondary literature, and in cultural and legislative change over the past 25 years. So in addition to the wealth of historical material within Frontier, Reynolds’ central thesis regarding land rights is enriched by contextualisation within Frontier and Reynolds’ own history.

Additionally, the ‘History Wars’ during the late 1990s and early 2000s has brought a politically filtered limelight to any reading of Reynolds’ histories.

As Reynolds’ work was featured across the discourse (see Attwood, 2011; Reynolds, 1999; Ritter, 2008) questions regarding the representation of the land rights movement publically remains contentious in federal politics, particularly with regards to the classroom. In a recent article (2014, August 15) Foley and Muldoon have argued that within the developing national curriculum there is an overemphasis on civil rights at the expense of the land rights movement. In effect this misrepresents the historic and continuing activism of Indigenous Australians across the land rights movement and belies the centrality of land rights, sovereignty and native title (Foley & Muldoon, 2014). Discourse around what is to be taught in schools is strongly reflective of public sentiments towards particular readings of history because of the ubiquity of the messages a curriculum is intended to

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transfer. If discussions within schools do not elaborate on the implications of colonisation, sovereignty and native title, Indigenous Australians are misrepresented as one group of disadvantaged Australian citizens rather than peoples of a diverse civilisation invaded by British colonisers and forced to engage with their imposed revolution. The ethical and legal repercussions for all who call this land their home do need to be considered as the conflict over land is still a frontier from the classroom to the parliament, just as Reynolds demanded in his conclusion to Frontier (1987, p. 196).

The inescapable reality of reading Reynolds in 2014 is that the history from 1987 to now also has a weight on our interpretations. What Reynolds does most successfully in Frontier though, is bring forth ongoing arguments embedded in the past, which resonate in the text’s present to argue for a more just future post-1987. Deconstructing Reynolds’ history is not for Reynolds to do but others who will be working on the history of Australian historians and their bodies of scholarship. Frontier is a text where the history it presents is purposeful and has had a meaningful impact on the trajectory of the historical discipline.

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REFERENCES Attwood, B. (2011). Aboriginal history, minority histories and historical wounds: the postcolonial condition, historical knowledge and the public life of history in Australia. Postcolonial Studies, 14(2), 171-186. doi: 10.1080/13688790.2011.563454 Attwood, B. (1990). Aborigines and academic historians: Some recent encounters. Australian Historical Studies, 24(94), 123-135. doi: 10.1080/10314619008595835 Crosby, A. W. (1987). Reviews. [Review of the book Frontier: Aborigines, settlers and land, by H. Reynolds]. Aboriginal History, 11, 191-193.

Curthoys, A. (1983). Rewriting Australian History: Including Aboriginal Resistance. Arena, 62, 96-110.

Curthoys, A. (2008). WEH Stanner and the Historians. In M. Hinkson & J. Beckett (Eds.), Appreciation of Difference: WEH Stanner and Aboriginal Australia (pp. 233-250). Canberra, ACT: Aboriginal Studies Press.

Denoon, D. (1988). Reviews. [Review of the book Frontier: Aborigines, settlers and land, by H. Reynolds]. Australian Historical Studies, 23(90), 127-162. doi: 10.1080/10314618808595783 Foley, G. & Muldoon, E. (2014, August 15). Pyning for Indigenous rights in the Australian curriculum. The Conversation. Retrieved from http://theconversation.com/ Read, P. (1987). Book Reviews. [Review of the book Frontier: Aborigines, settlers and land, by H. Reynolds]. Australian Aboriginal Studies, 2, 94-95.

Reece, B. (1987). Inventing Aborigines. Aboriginal History, 11(1), 14-23.

Reynolds, H. (1999). Why weren’t we told?: A personal search for the truth about our history (2nd ed.). Melbourne, VIC: Penguin.

Reynolds, H. (1987). Frontier: Aborigines, settlers and land. Sydney, NSW: Allen & Unwin.

Reynolds, H. (1987). The Law of the Land. Melbourne, VIC: Penguin.

Reynolds, H. (1982). The other side of the frontier: Aboriginal resistance to the European invasion of Australia. Melbourne, VIC: Penguin.

Ritter, D. (2008). Tilting at doctrine in a changing world: the three editions of Henry Reynolds’ The Law of the Land. Journal of Australian Studies, 32(3), 393-403. doi: 10.1080/14443050802294133

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Good Faith Bargaining: A compliance-based obligation in Australian industrial relations SOPHIE McPHATE Commerce Liberal Studies 4th year Executive Summary This essay takes the format of a submission made on behalf of the Queensland Nurses Union (QNU): a representative body for employees in the Queensland health sector and a long-standing enterprise bargaining representative for its members (QNU 2009). Recent experiences of enterprise bargaining under the Fair Work Act (2009) reaffirm the importance of statutory Good Faith Bargaining (GFB) obligations while highlighting gaps in the ability of the current regime to bring about its stated objectives of fairness, workplace flexibility and economic productivity (Forsyth 2010, QNU 2009). The purpose of this submission is fourfold: first, to make clear the Union’s primary position(s) in regards to GFB; second, to examine the theoretical underpinnings of the current regime; third, to identify and explain three key areas of concern for the Union (equity, efficiency and voice); and, finally, to submit a number of recommendations in light of these concerns. QNU envisages that the implementation of these recommendations will enhance the fairness, integrity and longevity of the collective enterprise bargaining system in Australia (Richards 2008).

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Statement of Issue The Fair Work Act (FWA) represents a shift away from neo-liberal employment relations theory and practice (which had previously characterised Australian industrial relations), towards a re-centralised, more theoretically plural, system. Through broad legislative changes, the FWA was an attempt to improve the Australian system of collective enterprise bargaining through re-aligning the interests of employees and employers and improving the voice of bargaining parties, equity and efficiency (Befort & Budd 2009). A statutory requirement for Good Faith Bargaining was embedded into the FWA: it requires parties to employment relationships to conduct themselves during bargaining periods ‘in good faith’ (Dorsett & Lafferty 2010, Barnes & Lafferty 2010).

The GFB provisions stipulated in section 228 of the Act are, however, largely procedural in nature and fail to bring about the substantive shifts toward the permeation of ‘good faith’ workplace cultures; an essential prerequisite for the development of an efficient economy, equitable employment outcomes and representative voice for actors in employment relationships (Befort & Budd 2009, Dorsett & Lafferty 2010). It is the view of the Queensland Nurses Union that the Act does not go far enough in ensuring that broader cultural change underpins statutory good faith obligations, nor that good faith becomes included in social contracts of employment. The key areas of concern for QNU relate to the three core objectives of the state in legislating around industrial relations (Befort & Budd 2009): 1. Equity: GFB obligations and remedies for non-compliance fail to recognise the power imbalance inherent in employment relationships (Caspersz et al 2011, Barnes & Lafferty 2010). GFB should be extended beyond mere compliance, improving equitable outcomes and enshrining good faith relationships rather than bargaining conduct alone 2. Efficiency: The formalistic nature of GFB obligations do not require that parties make concessions or reach an agreement; parties need not genuinely act in good faith, so long as procedural requirements are met (Riley 2009). Surface compliance does not bring about workplace efficiencies, nor contribute to improved economic productivity (Dorsett & Lafferty 2010).

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3. Voice: The GFB obligations apply only during a bargaining period and so limit good faith to a procedural process of compliance, undermining objectives of fair representation. A lack of statutory recognition of unions further subverts collective employee voice (Dorsett & Lafferty 2010).

Good Faith Bargaining: Theoretical Background The FWA has improved upon the model of enterprise bargaining during the Howard era. The absence of GFB obligations in the period 1996-2009 shifted the balance of power towards employers, as union recognition receded and managerial prerogatives shaped terms in individual workplace agreements (Dorsett & Lafferty 2010). The GFB requirements were included in the FWA in an attempt by the (then) government to improve upon flexibility, productivity and fairness concurrently (Forsyth 2010).

Good faith procedures are supported by the FWC’s framework of remedies for non-compliance. The objectives behind the Act itself are supported by the shift in status-quo of dominant industrial relations theories from neo-liberal market assumptions and unitarist conceptions of the employment relationship under Howard to the Rudd-Gillard framework of a more centrally regulated industrial relations arena where employers and employees aren’t assumed to have shared interests or equal power.

GFB obligations seek to rebalance power dynamics in the employment relationship and redirect focus to social, as well as economic, goals (QNU 2009). Indeed, equity considerations are fundamentally underpinned by a market-based rationale that GFB will contribute to improved productivity outcomes (Riley 2009).

The Role of the State The state’s role in industrial relations must remain embedded and must facilitate meaningful collective representation of employees and employers.

The umpire role of FWC does, however, raise questions over the ability of a regulator to support broad social and economic goals in the context of reregulation following a period of neo-liberal sympathy toward individual employment determination, managerial prerogative and hostility toward unions and collective bargaining (Caspersz et al 2011, Riley & Sheldon 2008). In order for the FWC to transition towards improving measures of equity, efficiency and voice in Australian employment relationships, the

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regulator must critically challenge its neo-liberal path dependence (Caspersz et al 2011). Industrial relations governance should be characterised not by a highly decentralised approach to enterprise bargaining, nor a revision to the antiquated system of compulsory third party conciliation and arbitration. Instead, in the view of QNU, the state must facilitate a system of enterprise bargaining that is fair and economically sound. Amendments to the FWA will allow for the role of the state to be significant but not overbearing, ultimately allowing for collective enterprise agreements to thrive as the dominant employment relations instrument (Rathmell 2012).

Recommendation 1: With support from the legislature, the Fair Work Commission must mediate (rather than promote) market imperatives and intervene in bargaining impasses, where appropriate. The FWC must expose surface bargaining tactics and facilitate a rebalancing of power inequities without undermining the enterprise as the new site of collective employment relations determination (Rathmell 2012, Forsyth 2010).

Policy Issues: Areas of Concern and Cases for Change 1) Equity The procedural framework of GFB obligations set out in section 228(1) of the Act allow for a culture of minimal compliance to develop in Australian workplaces and interpersonal employment relationships (Dorsett & Lafferty 2010). Though the obligations seek to engender the development of good faith in bargaining, they fall short of ensuring that good faith conduct is more deeply embedded into the employment relationship. This is problematic for employees, employers and their representatives in that minimum compliance with GFB obligations is legally defensible under the Act but – importantly – does not amount to equality of bargaining power when entering negotiations nor equitable outcomes at the conclusion of negotiations (Wilkinson et al 2013). While the GFB obligations confer responsibilities on all bargaining parties, the managerial prerogative of employers still holds too much sway over the initiation, direction and character of bargaining. Power inequities were stark in a recent enterprise bargaining case involving QNU: an employer sought unilaterally to change sick leave requirements for QNU members and, although good faith was procedurally satisfied, the employer would not produce documentation outlining the reasoning behind the decision (QNU 2009).

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It is clear to QNU that parties do not enter negotiations on an equal footing.

Thus, the GFB framework does not go far enough in ensuring that good faith goes beyond mere compliance and is extended to the overall employment relationship. Such an extension would, we argue, more effectively balance power during bargaining periods, as GFB would be underpinned by a robust relationship based good faith. QNU commends the Labor Party for introducing statutory obligations to bargain in good faith, but urge the current government to recognise the enduring power imbalance between employees and employers and move toward correcting such imbalances through amending the Act. One suggestion is a legislative move toward relationship based good faith which operates in New Zealand (NZ) under the Employment Relations Act (2000) (Dorsett & Lafferty 2010). The NZ regime extends good faith to all employment relationships (beyond the bargaining realm) and sets out extensive definitions and indicators of substantive good faith (Dorsett & Lafferty 2010). In contrast to the FWA, the NZ Act shows clear legislative intent to ‘address the inherent inequality of power in employment relationships’ (Dorsett & Lafferty 2010, pg.

62) through an explicit acknowledgement of the crucial importance of broad good faith in bringing about more equitable workplaces. This recognition represents a decisive step away from neo-liberal assumptions in NZ and a rejection of the unequal proportion of bargaining power held by employers. Australia must learn from this example and incorporate considerations of equity in bargaining more fully into the GFB regime. As it stands, the Australian GFB regime is unlikely to encourage broader and sustained cultural change in workplaces, due to the limitations inherent in a compliance-based model and the absence of a statutory requirement for good faith conduct to extend into the social contract of employment (Dorsett & Lafferty 2010).

Recommendation 2: The FWA should be amended to extend good faith obligations beyond the bargaining period to the full scope of employment relations. This may be achieved through mandated increased scope of good faith; the inclusion of clearer definitions of ‘good faith’ and of the types of employment relationships to which the extended obligation applies; and issuing recommendations for cultivating good faith employment relationships (Dorsett & Lafferty 2010, Rathmell 2012).

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2) Efficiency Procedural remedies (bargaining orders, majority support determinations and scope orders) available for application by the FWC do not address adequately inefficiencies born by the GFB regime (Caspersz et al 2011). The Commission is able to impose workplace determinations on recalcitrant parties if they are found to be bargaining not in good faith (Caspersz et al 2011). As we have argued, an employer who maintains legally defensible conduct during bargaining is not obliged to extend such conduct beyond minimum compliance, nor make any concessions during bargaining (Dorsett & Lafferty 2010). Inefficiencies arise as bargaining parties engage in ‘surface bargaining’ (Forsyth 2010, pg. 11) where GFB procedures are satisfied but parties fail to move towards an agreement. QNU has found bargaining to be inefficient when employers meet procedural requirements but refuse any reasonable concessions, allow negotiations to reach impasses and pattern bargain alongside other employers (QNU 2009). Additional tactics have compounded the inefficiencies experienced

by QNU as a result of surface bargaining: last minute changes to terms of negotiations or reneging on settled matters also stalls bargaining (Forsyth 2010). The legitimacy of such tactics is the subject of debate, but has not formally been considered by the FWC through bargaining orders (Forsyth 2010). Such orders relate only to procedural requirements and do not mandate compromise or agreement (Forsyth 2010). Indeed, the limited scope and strict application of FWC workplace determinations is unlikely to restrict managerial prerogative or eliminate surface bargaining any more than Australian Industrial Relations Commission determinations during the Work-Choices era (Riley 2009). As such, productivity and efficiency improvements sought through enterprise bargaining can be undermined through a mere compliance approach to the formalistic GFB obligations, whereas a more broad-based good faith obligation to make reasonable compromises may limit the use of such stall tactics (Riley 2009).

Recommendation 3: Enhanced macroeconomic productivity and workplace efficiencies should be sought through a co-operative approach to GFB. The FWC must consider the legitimacy of bargaining tactics designed to stall negotiations and should take a strong stance against surface compliance (etc.) leading to bargaining inefficiencies. To compliment this, a requirement that parties make reasonable compromises and take genuine steps toward reaching an agreement should be mandated through amendments to the FWA.

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3) Voice Part of the intention behind GFB obligations is that employees gain improved access to circumstances where their opinions, concerns and requests can be clearly heard. The limit of GFB obligations to bargaining periods restricts this access to voice for employees, as no assurance of employer receptiveness exists when not directly engaged in bargaining (Dorsett & Lafferty 2010). In light of this, it is important that employees have access to effective collective representation and avenues for expression. The role of QNU in affording its members such a voice is vital for the overall achievement of improved employment and economic outcomes, however the omission of any statutory recognition of unions in the FWA entrenches bargaining inequities, undermines union bargaining power and – crucially – restricts employee voice (Caspersz et al 2011).

Further, employee voice is obstructed by a lack of any obligation for employers to identify all employee representatives with whom they are bargaining (Smith 2012). This omission limits the ability of unions to avoid undermining each other’s negotiations with the employer, as they may not be aware of, or communicating with other representatives. These examples highlight key flaws in the ability of the FWA and its GFB regime to support adequately the exercise and application of employee voice.

Recommendation 4: Recognition of unions as legitimate parties to the process of collective enterprise bargaining should be enhanced under the FWA (Smith 2012). Further, the Act should confer upon employers a requirement that all bargaining representatives with whom they are negotiating are identified to other representatives (Smith 2012).

Contrary to the broad aims of the FWA and GFB intentions, some employers have encouraged employees to ‘opt out’ of approved terms in collective agreements (Smith 2012). Employers who encourage individual arrangements with employees subvert GFB and the collective bargaining system. Similar to the situation of unidentified employee representatives explained above, the competition between individual employees when negotiating ‘opt out’ terms with their employer undercuts the collective agreements made during the bargaining period and creates a hostile environment for good faith principles and practice (Dorsett & Lafferty 2010). Another impediment to employee voice in the GFB regime is the ability of employers to conduct employee ballots in the absence of the

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relevant union (Dorsett & Lafferty 2010). Bypassing unions (who are the default representatives of their members) effectively silences employee voice and amounts to a contravention of the Act (Barnes & Lafferty 2010).

Statutory prohibitions against this conduct would halt the undermining effect of individual negotiations on collectively agreed terms and would bolster the role of employee representatives in giving voice to employees in bargaining.

Recommendation 5: The FWA good faith regime should be amended to include a prohibition against employees individually ‘opting out’ of collective agreements (or terms within them), once they have been approved (Smith 2012). Limits should be placed on the ability of employers to communicate directly with employees regarding bargaining, if that employee is already represented by a union or similar. The FWC should take a strong stance against the bypassing of legitimate representatives.

Summary of Submission The Fair Work Act’s (2009) Good Faith Bargaining obligations are conferred on the parties to an enterprise bargaining agreement (Riley 2009). The legislative intent of the Act is for good faith procedural protocols to pervade bargaining but not extend beyond negotiations nor necessarily encourage development of substantive good faith in employment relationships (Dorsett & Lafferty 2010). Inherent power imbalances between employers and employees in bargaining are not fully addressed through the Act. Efficiency is damaged through the temptation of surface compliance and employee voice is restricted through individual employeremployee negotiations and the omission of any statutory recognition of unions. It is the view of QNU that while the GFB provisions represent an important step toward aligning Australia’s industrial relations system with the contemporary social and economic context, and theoretical discourse, the Act does not go far enough in ensuring interests of employees and employers are reflected equally alongside market imperatives in enterprise bargaining agreements. Amendments must be made to the FWA to develop a more robust GFB regime that more effectively pursues the triad of industrial relations objectives: equity, efficiency and voice (Befort & Budd 2009). The recommendations put forward by QNU in this submission provide an initial framework for developing and implementing such changes.

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BIBLIOGRAPHY Barnes, A & Lafferty, G. 2010, ‘The Fair Work Act: As Good as It Gets?’, The Economic and Labour Relations Review, Vol. 21, No. 1, pp. 1-12.

Befort, S & Budd, J. 2009, Invisible Hands, Invisible Objectives: Bringing Workplace Law & Public Policy Into Focus, Stanford University Press, Palo Alto, CA, USA. Caspersz, D; Gillan, M & White, D. 2011, ‘State, Ideology and the Emergence of ‘Good Faith’ Collective Bargaining Regulation in Australia’, Journal of Industrial Relations, Vol. 53, No. 5, pp. 632-646.

Dorsett, S & Lafferty, G. 2010, ‘Good Faith and the Fair Work Act: Its Potential, in light of the New Zealand Experience’, The Economic and Labour Relations Review, Vol. 21, No. 1, pp.

53-86.

Forsyth, A. 2010, ‘The Impact of ‘Good Faith’ Obligations on Collective Bargaining Practices and Outcomes in Australia, Canada and the USA’, Monash University Workplace and Corporate Law Research Group, Working Paper 17, pp. 1-31.

Queensland Workers Union (QNU). 2009, ‘The Importance of Good Faith Bargaining’, Industrial, pg. 18.

Rathmell, A. 2012, Alex Bukarica and Andrew Dallas, with Anthony Forsyth (consulting ed.), ‘Promoting Good Faith Bargaining under Australia’s Fair Work Act 2009: Lessons from the Collective Bargaining Experience in Canada and New Zealand’, Journal of Industrial Relations, Vol. 54, pp. 259-261.

Richards, D. 2008, ‘Industrial Relations Law Post Work Choices’, Australian Nursing Journal, Vol.16, No. 5, pg. 23.

Riley, J. 2009, ‘Bargaining in Good Faith’, Precedent, Issue 94, pp. 16-20.

Riley, J & Sheldon, P. 2008, ‘Remaining Industrial Relations in Australia’, The Economic and Labour Relations Review, Vol. 18, No. 2, pp. 1-6.

Smith, D. 2012, ‘Submission to the Fair Work Act Review Panel Review of the Fair Work Act 2009’, Australian Services Union Submission, pp. 1-35.

Wilkinson, A; Townsend, K & Burgess, J. 2013, ‘Reassessing employee involvement and participation: Atrophy, reinvigoration and patchwork in Australian workplaces’, Journal of Industrial Relations, Vol. 55, No. 4, pp. 583-600.

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The Matilda Effect: Gender difference, individual recognition and authority in science CLAIRE BARNES Medical Science 3rd year

Science relies upon social interaction to share and validate its findings. This interaction may be virtual or physical: via the Internet or collaboration. A good scientist is a collaborator, often simultaneously competing for the minimal individual recognition available. In this essay I argue both the Matthew and Matilda Effects impinge upon the scientific rewards system, ensuring recognition for emerging scientists is difficult to obtain. However, the Internet can act to reduce the impact of these effects because it affords greater accessibility to scientific studies and availability of information about scientists.

The Matthew Effect (ME) was a term coined by sociologist Robert Merton in an early publication (1968). It alludes to the Gospel of Matthew: For whomsoever hath, to him shall be given, and he shall have more abundance; but whomsoever hath not, from him shall be taken away even that he hath (Matthew 13:12 in Rossiter 1993, p.325).

Merton extended this to refer to science, implying there is a tendency to celebrate those who are already well known or “prominently-placed” (Rossiter 1993, p.337). It suggests the rewards scheme in science applies a “halo effect” (Rossiter 1993, p.325) to esteemed scientists, who find work they did not do, or did in collaboration, is attributed to them. In essence the ME is the over-acknowledgment of those at the pinnacle of the scientific profession.

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The problem here is this awards system does not benefit fledgling or lessknown scientists. For instance, the field of radio astronomy was slow to evolve, as detectable radio waves from distant galaxies were not anticipated (Halliwell 1982). Rather, during the 1930s, professional astronomers were too distracted by the revolutionary development of Hooker reflectors and telescope design to be interested in Karle Guthe Jansky’s seminal detection of galactic radio noise. Jansky’s observations were followed up several years later and today the discovery that the Milky Way emanates radio waves is attributed to him. Jansky was an engineer with an interest in physics, not a professional astronomer. The ME can be seen in operation here: Jansky, as an unknown astronomer, found it difficult to draw attention to his findings despite their ground-breaking nature.

Although the misallocation of recognition due to the ME is seemingly unfair, Merton describes it as “functional” (Rossiter 1993, p.326).

Merton (1968) argues that less-known scientists learn to work with the disadvantage of misappropriation of recognition by communicating their ideas to their more-prominent colleagues, who hopefully publicise them and help to construct a reputation for the budding researcher. Yet this makes it difficult for readers to know who has contributed most to a paper: famous names are memorable and have a “visibility factor” (Rossiter 1993, p.326). This fame—particularly for Nobel laureates—is long lasting. This is unfortunate as there are more scientists of Nobel calibre than there are Nobel Prize-winners. For example, physicist Marian Smoluchowski described Brownian motion in 1906, at the same time as, and independently of, Einstein (Rossiter 1993). Unfortunately Einstein’s fame eclipsed Smoluchowski’s career: Einstein is a household name, while Smoluchowski is almost forgotten. More recently, in 1952, microbiologist Selman Waksman was awarded the Nobel Prize for discovering streptomycin’s antibiotic activity against tuberculosis (Mistiaen 2002).

Waksman failed to acknowledge the contributions of Albert Schatz, a PhD student in his laboratory. Schatz sued Waksman, received compensation and is now considered co-discoverer.

Sociologist Harriet Zuckerman argues the scientific reward system, even at Nobel standard, is “dysfunctional”. One laureate interviewed claims the prize is awarded “[b]y some random selection procedure; you pick out a person, and you make him an object of a personality cult” (Zuckerman 1978, p.425). The Nobel Prize, according to Zuckerman, awards a few

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symbolic figures and does not accommodate great change in science or in its social organisation. According to the ME, few scientists can achieve success: the prominent scientist gains continual recognition, while the underdog struggles to be acknowledged at all.

The Matilda Effect concerns the systematic obscuring of scientific women, whose work is frequently attributed to their male colleagues. Historian of science Margaret Rossiter (1993) introduced this phrase to describe the denial and repression of female contribution to scientific research. There are numerous examples of this and its negative impact upon the rewarding of female scientists for revolutionary work. Perhaps the most outrageous is that of Trotula, an eleventh-century physician (Rossiter 1993). Trotula was famous for her cures of women’s diseases, but her name was miscopied by a monk in the twelfth century who assumed such a successful scientist must have been a man. Nineteenth-century medical historian Karl Sudhoff further downgraded Trotula to midwife, implying only a male physician could have documented such important ideas. Trotula is consequently not included in the Dictionary of Scientific Biography. The work of women scientists has repeatedly been ignored and eradicated from history, often due to antagonistic historians and because their work was subsequently eclipsed by their male counterparts.

Yet is the Matilda Effect simply a re-labelling of the ME? Sociologist Jonathon Cole (1979) argues the Matilda Effect is the application of the ME to the consideration of women. He posits that women have been less cited and have received less attention and are therefore deserving of a lower academic rank in science. Cole implies the Matilda Effect is not of particular importance, it is simply a fact of scientific endeavour, and this unfairness is equally as applicable to men as it is to women.

However, the Matilda Effect is more significant than Cole suggests.

The concept is a significant feminist idea that reveals much about the importance of diversity in science. Sociology of science has progressed minimally since Cole’s article, with philosophers of science giving gender more attention than sociologists (Rossiter 1993). Raising awareness is vital to the combat of institutionalised sexism, and Rossiter (1993) does exactly that with her notion: there must be a focus upon gender for the public to be made conscious of and work to reverse any inequalities in science.

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Historically, diversity in science was irrelevant. Women were not expected to be scientists. Rather than pursue careers in science themselves they were encouraged to rear scientifically oriented sons. In fact, women were restricted to assistant jobs and social entertainment amongst scientists was deliberately masculinised in order to discourage female attendance (Watts 2007). Physicist Maria Goeppart Mayer, for example, shared the Nobel Prize in 1963 with two male scientists for their co-discovery of the shell model of the nucleus. Due to strict anti-nepotism rules forbidding women to work in the same faculty as their husbands at the University of Chicago at the time, Mayer worked as an unpaid volunteer faculty member (Watts 2007). Mayer’s contributions would easily have been disregarded by the Nobel committee if she had not been included as a member of the Fermi research group, despite her informal title (Dash 1980). Variety of collaborators, particularly in science, bring new and creative ideas.

The sex of the investigator or observer is irrelevant. Rossiter (1993) emphasises this, and with awareness of these inequalities, females should be encouraged to pursue scientific endeavours if an interest is evident.

Without doubt the advent of the Internet and prevalence of open-source publishing has altered the way information is presented to the public.

Material of varying quality is now accessible to anyone with an Internet connection. It could even be argued that technology has had negative effects on individual recognition in science. With the Internet comes rapid and twenty-four hour access to information. Now some papers are freeto-access, the most eye-catching and glamorous work will receive most publicity and attention. Conversely, biologist and Nobel laureate Randy Schekman (2013) argues that science has changed for the better. Schekman announced last year that his laboratory would no longer send articles to top-tier journals such as Nature, Science and Cell, arguing that their reputations are not entirely warranted because like many journals, they concentrate upon selling their brand rather than stimulating pioneering research. Rather, Schekman is editor of eLife, an online open-access journal funded by the Wellcome Trust, the Howard Hughes Medical Institute and the Max Planck Society. eLife publishes high-quality research that is free for anyone to read, avoiding unnecessary promotion of expensive subscriptions. The Internet therefore also works to make science more accessible and facilitates access to the achievements and research of scientists, including women. While the Matthew and Matilda Effects

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are undoubtedly still relevant, scientists who publish online are listed as authors and are cited and referenced appropriately. Personal recognition in science can only change for the better if the scientific rewards system fundamentally changes too. While the Internet may bombard the public with information, ultimately it makes science accessible and hopefully upand-coming names will be remembered.

Currently, individual recognition in science is still difficult to attain, but with increased awareness of this and of the Matilda Effect, the public and scientific elite can make a conscious effort to effect change. Distraction and rapidity of global information sharing aside, the Internet remains the single best tool to ensure this happens.

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REFERENCES Cole, J 1979, Fair Science: Women in the Scientific Community, Free Press, New York.

Dash, J 1980, “Maria Goeppart Mayer”, in Notable American Women: the Modern Period, Sicherman, B & Green, CH (eds.), Harvard University Press, Cambridge, USA. Farleigh, P 2014, HPSC2101: What is this thing called Science?, lecture 3, week 8: On tour with Latour, lecture PowerPoint slides, viewed 8 October 2014, https://elearning.sydney.edu.au/webapps/portal/ frameset.jsp.

Halliwell, MJ 1982, “Prestige allocation in astronomical research: a study of dysfunctional aspects”, The Pacific Sociological Review, vol. 25, no. 2, pp. 233-249.

Merton, JK 1968, “The Matthew Effect in Science”, Science, vol. 159, no. 3810, pp. 56-63.

Mistiaen, V 2002, “Time, and the great healer”, The Guardian, 2 November, viewed 10 October 2014, www.theguardian.com Rossiter, M 1993, “The Matthew Matilda Effect in Science”, Social Studies of Science, vol. 23, no. 2, pp. 325-341.

Schekman, R 2013, “How journals like Nature, Cell and Science are damaging science”, The Guardian, 9 December, viewed 9 October 2014, www.theguardian.com Watts, R 2007, Women in Science: a social and cultural history, Routledge, Abingdon, UK. Zuckerman, H 1978, “The Sociology of the Nobel Prize: Further Notes and Queries”, Scientific American, vol. 66, no. 4, pp. 420-425.

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Instrumentally conditioned learning and extinction in rats IMOGEN HINES Bachelor of Science/Master of Nutrition & Dietetics 3rd year An instrumental response that is continuously repeated without reinforcement1 leads to extinction2 where the learned behaviour decreases (Bouton, Winterbauer & Travis, 2012). The instrumental response develops a second possible outcome, retained with the first, and thus the outcome of the response becomes ambiguous and context dependent. Subsequently the response also becomes context dependent as it is only performed when a positive outcome should occur (Bouton et. al. 2012). Original learning is preserved during extinction allowing renewal, where original behaviour returns following a change in context after extinction, without further exposure to the reinforcer (Bouton & Boulles, 1979). Renewal results from a reduction in the number of contextual cues facilitating the retrieval of the extinction experience (Thomas, Vurbic & Novak, 2009).

Experimental findings on renewal are important for understanding clinical relapse. Inhibited actions or habits, such as drug addiction, may return in a context that differs to that of extinction (Bouton et. al. 2012). For example, psychotherapies often occur in a therapists’ office and treatment is compromised by renewal outside this context (Thomas et. al. 2009).

Bouton et. al. (2012) observed ABA, AAB and ABC (where A is the original context and B and C are new contexts) renewal after instrumental conditioning in rats. Like Thomas, Larson and Ayres (2003), they found no evidence of renewal in an ABB scenario. The lack of renewal in the ABB scenario indicates that extinction is more context dependent than

1

A reward for completing a task.

2 No longer performing a trained response after learning that the response is not being rewarded anymore.

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conditioning. Thomas et. al. (2003) observed ABA renewal when the only contextual differences were odour and the side of the room that the Skinner Box was located. Both of these studies focused on renewal; the effect of context on conditioning was not thoroughly investigated.

The present study investigated the effect of context on conditioning, extinction and renewal of new learning. Rats were placed in either an AAA context group or an ABA context group. The presence of conditioning, extinction and renewal was tested by recording the number of lever presses made in training, extinction and renewal scenarios.

It was hypothesised that the conditioned response would initially occur when ABA group rats were placed in Context B; rats would press the lever.

Due to ABA rats being extinguished in a context that was different to that of learning, it was predicted that extinction would occur more rapidly in this group due to having less contextual clues. It was predicted that in the extinction phase they would press the lever less than the AAA rats. In the present study contexts A and B were on different sides of the laboratory and the odour of the box (it would have had the odour of its previous occupant) varied. It was thus hypothesized that renewal would occur in the ABA rats and they would press the lever more than the AAA rats in the renewal phase.

Method Subjects The study was performed on 29 female 3-month-old Hooded Wistar rats that had been caged in groups of four. In the 18 hours prior to the study the rats were water deprived to increase their motivation to perform the desired behaviour. The rats had previously been used in unrelated behavioural studies.

Apparatus A standard Skinner Box, equipped with a lever and dipper was used as it easily allowed the rats to be reinforced. Some of the boxes were in sound attenuation cabinets. The lever and dipper were controlled by a computer.

The computer raised the dipper during the training phase providing the rat with a 20% weight/volume sucrose solution as reinforcement, produced a tone when the dipper was raised and recorded the number of lever presses.

The use of the computer reduced the likelihood of human error.

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Procedure The rats were trained with tap water over a three-week period, initially with magazine3 training and then with lever pressing. On the testing day they were randomly allocated to two groups, AAA and ABA. Group AAA were to be trained, extinguished and renewed in the same context. Group ABA were to be trained, transferred to a novel Skinner Box for extinction and returned to their original box for renewal. After being placed in their boxes the rats were trained for five minutes. In the first minute they were reinforced for lever pressing with a fixed interval 5-second schedule of reinforcement4 (FI 5). In the second two minutes with a FI 10 schedule and in the final two minutes with a FI 15 schedule. The number of lever presses the rats made per minute was recorded. All rats were removed from their box and handled following training. Group AAA rats were then returned to their original boxes whilst Group ABA rats were placed in boxes in a sound attenuation cabinet with the door closed. In order to extinguish behaviour, the rats received no reward for lever pressing. This occurred for 15 minutes. The number of lever presses made each minute for the first five minutes of extinction was recorded. The rats were removed from the boxes and all rats were returned to their original box for the renewal phase. Over a period of 5 minutes, when the rats received no reinforcement for lever pressing, the number of lever presses per minute was recorded.

Results No significant difference was found between groups during initial training and extinction (p > 0.05). AAA rats had the same number of lever presses as ABA rats. The mean number of lever presses for both groups in these two phases can be seen in Figure 1 and Figure 2 respectively. During renewal, rats that were extinguished in a changed context recorded a significantly higher number of lever presses than those who had no context change (t(27) = 3.02, p < 0.01). The mean number of lever presses for both groups in the renewal phase can be seen in Figure 3.

3 4

The rats learned how to drink water from a sponge attached to a lever.

The minimum amount of time between reinforcement; the rats had to wait 5 seconds between lever presses to receive another reinforcer. On an FI 10 schedule, they must wait 10 seconds.

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Figure 1. Mean number of Lever Presses per minute (+SEM) in the Training Phase for Group AAA (n = 15) and Group ABA (n = 14)

Figure 2. Mean number of Lever Presses per minute (+SEM) during the Extinction Phase for Group AAA (n = 15) and Group ABA (n = 14)

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Figure 3. Mean number of Lever Presses per minute (+SEM) in the Renewal Phase for Group AAA (n = 15) and Group ABA (n = 14) Discussion The present study examined the effect of context on extinction and renewal.

Our hypothesis that rats would perform the conditioned response following a change in context was confirmed. As expected, renewal was experienced by rats when returned to their training context following extinction in a novel context; they pressed the lever significantly more in the renewal phase than rats with no context change. It was predicted that ABA group rats would press the lever less in the extinction phase than AAA group rats, however it was found that the two groups extinguished at the same rate.

Extinction occurring at the same rate in AAA and ABA rats was fascinating.

Although conditioning is less reliant on context than extinction (Bouton et. al. 2012), our results indicate that conditioning is not context specific. This extends previous research findings, in particular Bouton et. al. who focused on renewal rather than extinction in instrumental conditioning. The basis of conditioning lacking context dependence is unknown. It can be speculated that the outcome of a response may be considered universal to all contexts until the outcome becomes ambiguous, then context is used by the rat to predict the possibility of the outcome occurring. An alternate explanation for these findings is an error with the computer settings. On multiple

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occasions, when switching from training to extinction, the computer did not reset and the rats were rewarded despite being in the extinction context. The extinction phase began when the error was corrected. This reinforcement may have caused the rats initially to associate Context B with reward in the same way Context A was associated with reward. Further research into the effect of context on conditioned learning with a better computer program should be conducted in order to determine whether our findings are true or due to the computer error. If the results are true then psychotherapies may need to be altered to increase the number of extinction contexts (Bouton et. al.).

For the most part, the present study corroborates previous research. An extinction effect occurred and this concurs with Bouton et. al. (2012). The renewal effect we observed also supports this paper. Renewal occurred because the rats were placed in a context that they associated with reward (Thomas et. al. 2009). It is therefore recommended that psychotherapy patients avoid situations in which contextual cues may cause them to relapse. The present study is limited in its ability to generalize to human psychotherapies as rat studies of instrumental learning can differ to human extinction and renewal. Rats are water deprived whereas humans often have habits lacking biological needs (Bouton et. al. 2012). It would therefore be beneficial to test extinction and renewal in the absence of biological needs.

The present study has implications for how psychotherapies are conducted.

Rats performed the conditioned response following a change in context, extinguished at the same rate regardless of the context in which they were conditioned and when returned to a context that was different to extinction rats had a renewal effect. Psychotherapies should, therefore, endeavour to extinguish behaviour in multiple contexts as this may help to reduce renewal by providing a greater number of contextual cues that are associated with extinction than conditioning.

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REFERENCES Bouton, M. E., & Bolles, R. C. (1979). Contextual control of the extinction and conditioned fear.

Learning and Motivation, 10, 445-466.

Bouton, M. E., Winterbauer, N. E., & Todd, T. P. (2012). Relapse processes after the extinction of instrumental learning: Renewal, resurgence, and reacquisition. Behaviour Processes, 90, 130-141.

Thomas, B. L., Larsen, N., & Ayres, J. J. B. (2003). Role of context similarity in ABA, ABC, and AAB renewal paradigms: Implications for theories of renewal and for treating human phobias. Learning and Motivation, 34, 410-436.

Thomas, B. L., Vurbic, D., & Novak, C. (2009). Extensive extinction in multiple contexts eliminates the renewal of conditioned fear in rats. Learning and Motivation, 40, 147-159.

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UAVs and anti-Americanism in Pakistan JULIA KEYWORTH International and Global Studies 3rd year The United State of America’s use of unmanned aerial vehicles (UAVs), more commonly referred to as drones, in the Middle East has escalated significantly since 2008, with the majority of drone strikes occurring in the Federally Administered Tribal Areas (FATA) in Pakistan (The International Security Program, 2014; Fair, Kaltenthaler & Miller, 2014, p. 7). Although the recent escalation of the American drone program has prompted a proliferation of literature on the subject, very little of this work provides conclusive answers on the impact of drone use on attitudes towards the United States. After introducing the concept of antiAmericanism, this essay will first examine the argument that the US’s use of drones in Pakistan has caused an increase in anti-American sentiment in that country. It will assert that perceptions of American hypocrisy, exacerbated by the use of drones, are the central factor contributing to anti-Americanism in Pakistan. The essay will then consider conflicting evidence, most notably in the form of polling data (Fair, Kaltenthaler & Miller, 2014), arguing that a correlation between drone strikes and increased anti-American sentiment is not evident. However, providing a definitive conclusion as to the relationship between US drone use and antiAmericanism is further complicated by questions over whether attitude changes in Pakistan, if they are indeed present, are best understood as criticisms of American policy or true, systemic anti-Americanism. But even if a definitive conclusion cannot yet be reached, this essay will conclude by arguing that the relationship between drone use on antiAmericanism still remains a relevant and politically significant question to ask in light of Jamal’s (2012) argument that addressing anti-Americanism in the Middle East is crucial for the US to achieve its foreign policy goals.

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As numerous authors highlight (see O’Connor, 2004; O’Connor & Griffiths, 2006; Katzenstein & Keohane, 2007), anti-Americanism is an amorphous and hence problematic concept to define, applied widely and often inaccurately to an array of attitudes. O’Connor emphasises that true anti-Americanism extends beyond general opposition and criticisms of America, with the term instead implying a more pathological, emotionally charged, “across-the-board abhorrence of American politics, culture and people” (O’Connor, 2006, p. 1). Emerging in the early nineteenth century, anti-Americanism was initially expressed through stereotypes, characterising the United States as uncultured, arrogant, materialistic and chauvinistic (O’Connor, 2004, pp. 79-80). Over time, these stereotypes and attitudes have evolved, gradually developing new emphasises and regional particularities (O’Connor, 2009, p. 4).

As Akbarzadeh and Baxter (2007) argue, anti-Americanism in the Middle East has predominately been fuelled by the issue of hypocrisy, a term they use to describe the apparent disconnect between the liberal principles that the United States claims to uphold and the contradictory reality of their actions. Katzenstein and Keohane (2007, pp. 29-31) express this idea of hypocrisy as “liberal anti-Americanism”, where anti-American sentiment arises out of the US’s perceived failure to live up to the liberal ideals that it propagates. In the case of Pakistan and the Middle East, it is principles such as freedom, democracy and self-determination that the US is perceived to have continually promised but repeatedly failed to uphold, that fuel the deep-rooted and long-running tendency towards anti-Americanism seen in the region (Akbarzadeh & Baxter, 2007, pp. 282-285; Fair, Kaltenthaler & Miller, 2014, pp. 18-19).

Due to the perceived correlation between the US’s drone program and perceptions of American hypocrisy, the argument that American drone use in Pakistan has increased anti-Americanism in the country appears credible. For Kennedy (2013), the issue of hypocrisy is linked to a lack of legitimacy. The current deficit of internationally accepted norms and standards on drone use means the US employs its drone-first foreign policy in Pakistan without a legal framework to validate its actions (Kennedy, 2007, pp. 25-26). As a consequence, America’s continuing use of drones lacks legitimacy and is perceived to be immoral and even illegal to many in Pakistan. It thus appears directly to contravene the self-propagated image of America as moral exemplar to the rest of the world (Kennedy, 2007,

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pp. 27-28; Beinart, 2014). Such an extensive gap between the American rhetoric of freedom and democracy and the action of illegitimate “targeted killings” in another sovereign state appears “starkly hypocritical and deceitful”, exacerbating anti-American sentiment stemming from perceptions of the US’s “two-faced” nature (Kennedy, 2007, p. 28).

Aside from a lack of legitimacy, theorists identify two other main factors that contribute to perceptions of US hypocrisy. The first is the view that American drone use violates Pakistani sovereignty and undermines democracy in the country. Although it is generally accepted (see Fair, Kaltenthaler & Miller, 2014, pp. 11-12; Boyle, 2013, p. 15; Shar, 2012, p. 61) that the Pakistani government is somewhat complicit in the US’s drone campaign, this perception persists. Boyle (2013, pp. 15-18) argues that the continuing use of UAVs corrodes the stability and legitimacy of the democratically elected Pakistani government and undermines the appearance of Pakistani sovereignty. The fact that the US appears to be directly contravening its supposed respect for the principles of sovereignty and democracy exacerbates the appearance of American hypocrisy, fuelling anger, resentment and deepening “the reservoirs of anti-US sentiment” in Pakistan (Dowd, 2013, p. 14; Boyle, 2013, p. 29).

Second, perceptions of hypocrisy arise out of the double-standard evident through the high number of civilian deaths caused by US drones, which are again seen to fuel an increase in anti-Americanism. American drone strikes are estimated to have killed between 250 and 300 civilians since 2004, although the actual number is likely to exceed this due to the difficulties of attaining accurate casualty numbers and ambiguities in the classification of “militants” and “civilians” (The International Security Program, 2014; Boyle, 2013, pp. 6-7; Mayer, 2009). One of the most extreme examples of high civilian casualties is the 2009 drone strike of a funeral in South Wiziristan, where only two of the 40 to 80 (again, reports on figures differ) casualties were classified as “militants” (Mayer, 2009; The International Security Program, 2014). The US’s so-called “guilt-by-association” policy, wherein the killing of civilians in close proximity to militant targets is considered permissible, stands as a sharp contradiction to the rule of law and respect for human rights that the US claims to champion (Boyle, 2013, p. 7).

Again, scholars such as Kennedy and Seale see this hypocrisy as increasing hostility and hatred towards the US and directly fuelling “blowback” against America (Kennedy, 2013, p. 1; Seale, 2010, p. 11).

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Yet despite the strength of these arguments, Fair, Kaltenthaler and Miller (2014) present compelling evidence suggesting that the US’s use of drones in Pakistan has not correlated to an increase in anti-Americanism. The authors present Pew research data showing that although the levels of “unfavourable” attitudes towards the US have been continually high in Pakistan, they also demonstrate that there has been no significant increase since the 2008 escalation of the US’s Pakistani drone program (Fair, Kalenthaler & Miller, 2014, p. 18; The International Security Program, 2014). Until 2008 only ten American drone strikes are estimated to have occurred in Pakistan (The International Security Program, 2014). In 2008, the number jumped significantly to 36 as the drone program intensified, and continued to rise to a peak of 122 strikes in 2010 (The International Security Program, 2014). Yet no correlating increase in anti-American sentiment is evident in the polling data, with levels of “unfavourable” attitudes towards America remaining relatively constant between 60-68 percent from 2004-2010 (Fair, Kaltenthaler & Miller, 2014, p. 18). Thus, the authors argue that “[m]ost Pakistanis were anti-American before the drones became a subject of public discourse”, and one cannot surmise from the data that the intensification of US drone strikes has noticeably increased anti-Americanism in Pakistan (Fair, Kalenthaler & Miller, 2014, p. 18).

Taken at face value, this data presents a compelling challenge to those who argue that American drone strikes have exacerbated anti-Americanism.

However, as O’Connor (2007, p. xvi) emphasises, it is crucial that polling data be used as the “starting point and not the end point” for understanding attitudes as complex as anti-Americanism, and data that weaknesses be examined. In this case, the veracity of the data the authors utilise is undermined by the fact that it only drew from a sample of 1681 Pakistani respondents, and further did not survey anyone in the FATA where the drone strikes are actually taking place (Fair, Kaltenthaler & Miller, 2014, pp. 24, 29). Hence, the highly limited scope of responses upon which this data is based weakens the authors’ challenge to the argument that the US’s use of drones in Pakistan has correlated to an increase in AntiAmericanism.

Elements of Fair, Kaltenthaler and Miller’s (2014) article provide means to explore further the complexities of accurately ascertaining the impact of drone use on anti-Americanism in Pakistan. The data used by the authors

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measured the level of “unfavourable” attitudes towards the United States, but when considering the definition of anti-Americanism provided by authors such as Marie-France Toinet, “unfavourable” arguably does not qualify as true anti-Americanism. Toinet (1990, p. 219) asserts the term anti-Americanism “is only justified if it implies a systemic opposition – a sort of allergic reaction – to America as a whole”, rather than merely criticisms or negative perceptions of elements of American culture or policy. While all the authors discussed in this essay identify anger, frustration and “unfavourable” attitudes towards the US in Pakistan, it will require significant further investigation to ascertain whether these attitudes constitute a complete “allergic reaction” to everything American, or whether they are more accurately described as adverse responses to some elements of US policy, such as the use of drones.

Evidently, there are significant impediments to determining decisively the impact of drone-use on attitudes towards America in Pakistan. But in light of Jamal’s (2012) argument as to the relevance of anti-Americanism to US interests, this still remains an important question to examine.

Jamal (2012, pp. 229, 232-244) argues that the impact of US drone use on anti-Americanism should be a central concern for the United States, as combating anti-Americanism in the Middle East is imperative if the US is to achieve its long-term security objectives in the region. If Jamal (2012, p. 241) is correct in asserting that “[t]he most immediate mechanism for facilitating the path to democracy is to reduce anti-American sentiment” in the Middle East, then understanding the impact of policies such as the use of drones on anti-Americanism is crucial for informing the US’s future foreign policy decisions.

It is clearly difficult to definitively ascertain the impact of US drone use on anti-American attitudes in Pakistan. Although there are compelling arguments that the hypocrisy which the drone strikes emphasise is exacerbating anti-American attitudes, conflicting polling data and ambiguities as to whether the drone strikes are increasing true antiAmericanism or whether they are simply criticisms of American foreign policy, makes it difficult to reach a definitive conclusion. The weaknesses in the polling data available highlights the need for a more nuanced and comprehensive study in this area, which should be a priority for the United States in light of Jamal’s (2012) argument about the relevance of antiAmericanism to US foreign policy decisions.

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BIBLIOGRAPHY Akbarzadeh, S. and Baxter, K., 2007, ‘Anti-Americanism in the Middle East’, in B. O’Connor (ed.), Anti-Americanism, Volume 1: Causes and Sources, Oxford: Greenwood World Publishing.

Beinart, P., 2014, January 30, ‘The End of American Exceptionalism’, National Journal, available at: http://www.nationaljournal.com/magazine/the-end-of-american-exceptionalism-20140203, accessed 4 October 2014.

Boyle, M. J., 2013, ‘The Costs and Consequences of Drone Warfare’, International Affairs, 89(1), pp. 1-29.

Dowd, A. M., 2013, ‘Drone Wars: Risks and Warnings’, Parameters, 42(4)/43(1), pp. 7-16.

Fair, C. C., Kaltenthaler, K. and Miller, W. J., 2014, ‘Pakistani Opposition to American Drone Strikes’, Political Science Quarterly, 129(1), pp. 1-33.

Jamal, A. A., 2012, Of Empires and Citizens: Pro-American Democracy or No Democracy at All?, Princeton: Princeton University Press.

Katzenstein, P. J. and Keohane, R. O., 2007, ‘Varieties of Anti-Americanism: A Framework for Analysis’, in P. J. Katzenstein and R. O, Keohane (eds.), Anti-Americanisms in World Politics, Ithaca: Cornell University Press.

Kennedy, G., 2013, ‘Drones: Legitimacy and Anti-Americanism’, Parameters, 42(4)/43(1), pp. 2528.

Mayer, J., 2009, ‘The Predator War; The Political Scene’, The New Yorker, 85 (34), available at: http://www.newyorker.com/magazine/2009/10/26/the-predator-war, accessed 28 September 2014.

O’Connor, B. and Griffiths, M., 2006, The Rise of Anti-Americanism, Routledge: New York.

O’Connor, B., 2004, ‘A Brief History of Anti-Americanism: From Cultural Criticism to Terrorism’, Australasian Journal of American Studies, 23(1), pp. 77-92.

O’Connor, B., 2009, ‘The Anti-American Tradition: A Literature Review’, Working Paper, The United States Studies Centre, available at: http://ussc.edu.au/s/media/docs/publications/0910_ oconnor_antiamerica.pdf, accessed 30 September 2014.

Seale, P., 2010, ‘The Multiple Lessons of Faisal Shahzad’, The Washington Report on Middle East Affairs, 29 (5), pp. 11, 16.

Shar, P. Z. and Zenko, M., 2012, ‘My Drone War’, Foreign Policy, 192, pp. 56-63,9.

The International Security Program, 2014, Drone Wars Pakistan: Analysis, available at: http:// securitydata.newamerica.net/drones/pakistan/analysis, accessed 29 September 2014.

Toinet, M., ‘Does Anti-Americanism Exist?’, in Denis Lacorne et al., (eds.), The Rise and Fall of Anti-Americanism, London: Macmillan, 1990.

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Family violence and Parenting Orders: The case for reform of the Family Law Act LINDSAY SCOTT Arts Law 5th year Since the 1980s, social scientists have researched the nature, incidence and effects of violence in intimate relationships. Social scientists and judges now generally accept that family violence is not ‘monolithic’, but rather represents a continuum ranging from isolated instances of mild conflict to serious coercive violence.1 This essay will consider how the court should determine appropriate parenting orders in cases where it is satisfied that there has been a history of family violence. In particular, it will consider the circumstances in which the courts should make an order denying any faceto-face contact between the perpetrator and the child. After a discussion of the social science literature on types of family violence and the effects of family violence on children, I will consider the relevant provisions in the Family Law Act (FLA) and the Family Court’s Family Violence Best Practice Principles (the BPP). In view of the difficulties associated with the BPP and the judicial use of social science literature, I will argue that the FLA should be amended to provide judges with greater guidance on the circumstances in which face-to-face contact between the perpetrator and the child should be denied.

1

Stephen Strickland and Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (2014) 28 Australian Journal of Family Law 47, 79; Patrick Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge University Press, 2011) 124.

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Social science literature on family violence Social science literature has provided important insights into the different types of violence that take place in intimate relationships. While the utility of typologies of family violence is open to debate,2 the literature has pointed to the need for a differential approach to family violence.

Given the high incidence of violence following separation,3 it is important that judges making parenting orders are able to identify the patterns of behaviour which present an ongoing risk of harm to the child and members of her family. Social scientists now broadly agree that there are four types of family violence which are characterised by particular aetiologies and behaviours: coercive controlling violence, violent resistance, situational couple violence and separation-instigated violence.4 The first type of family violence, coercive controlling violence, is characterised by a pattern of controlling and abusive behaviours, which range from acts of physical violence to verbal abuse and social isolation.5 This type of violence is almost always perpetrated by a man against his female partner.6 In some situations, a victim of coercive controlling violence may use force against the perpetrator in self-defense.7 Situational couple violence arises where disagreements in a relationship escalate into instances of physical violence or verbal abuse. Unlike coercive controlling violence, situational couple violence does not involve any attempt by one partner to assert control over the other, but rather reflects a loss of control by one or both partners.8 Both male and female partners can be responsible

2 3 4 5 6 7 8

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See, eg, Michael Johnson, ‘Domestic Violence: It’s Not About Gender – Or Is It?’ (2005) 67 Journal of Marriage and Family 1126.

See generally Rae Kaspiew et al, Evaluation of the 2006 Family Law Reforms (December 2009) Australian Institute of Family Studies <http://www.aifs.gov.au/institute/pubs/fle/ summaryreport.html>.

See generally Patrick Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge University Press, 2011) 123-8.

Mary Ann Dutton and Lisa Goodman, ‘Coercion in Intimate Partner Violence: Towards a New Conceptualization’ (2005) 52 Sex Roles 743.

Michael Johnson, ‘Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence’ (2006) 12 Violence Against Women 1003.

Joan Kelly and Michael Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implication for Intervention’ (2008) 46 Family Court Review 476.

Ibid 481.

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for situational couple violence, although women are more likely to suffer negative effects as a result of such violence.9 Finally, the term ‘separationinstigated violence’ is used to describe uncharacteristic acts of violence by parents who are distressed by the breakdown of their relationships with their intimate partners and children.10 Alongside their work in characterising family violence, social science researchers have also examined the effects of family violence on children.

Drawing on a large body of literature, Easteal and Grey point out that children who witness family violence or play a role in its aftermath have similar long-term outcomes as children who are physically or emotionally abused.11 Children exposed to family violence are more likely to suffer from psychological disorders and physical ailments, and, perhaps most tragically, are at an increased risk of later perpetrating family violence.

Unsurprisingly, the outcomes for children exposed to serious and ongoing family violence tend to be worse than those of children who experience isolated instances of mild violence.12 Family violence in the FLA and the BPP Recent amendments to the FLA draw on the social science literature on the different types of family violence and the effects of family violence on children. The 2011 amendments broadened the definition of ‘family violence’ to mean ‘any violence, threatening or other behaviour to a person that coerces or controls a member of his or her family, or causes the family member to be fearful’.13 Behaviour that may constitute family violence extends beyond acts of physical violence, encompassing the controlling and abusive behaviours that are associated with coercive controlling violence. For the purposes of the FLA, a child is exposed to family violence 9

Nancy Ver Steegh and Clare Dalton, ‘Report from the Wingspread Conference on Domestic Violence and Family Court’ (2008) 46 Family Court Review 454, 458.

10 Janet Johnson and Linda Campbell, ‘A Clinical Typology of Interparental Violence in Disputed-Custody Divorces’ (1993) American Journal of Orthopsychiatry 190, 196-7.

11

12 13

Patricia Easteal and Dimian Grey, ‘Risk of Harm to Children from Exposure to Family Violence: Looking at How it is Understood and Considered by the Judiciary’ (2013) 27 Australian Journal of Family Law 59, 60-1; see also Patrick Parkinson and Catherine Humphreys, ‘Children Who Witness Domestic Violence: The Implications for Child Protection’ (1998) 10 Child and Family Law Quarterly 147.

Easteal and Grey, above n 11, 60-1.

Family Law Act 1975 (Cth) s 4AB(1) (‘FLA’).

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if she sees or hears family violence or otherwise experiences its effects.14 This expansive provision reflects the findings that children suffer negative outcomes from any kind of exposure to family violence.

Part VII of the FLA concerns, inter alia, the making of parenting orders that deal with various aspects of parental responsibility for a child. The child’s best interests are the ‘paramount consideration’ in the court’s decision on whether to make a particular parenting order.15 In determining what is in the child’s best interests, the court must take into account two ‘primary considerations’ which closely mirror two of the stated objects of the Part: first, the benefit to the child of having a meaningful relationship with both her parents and second, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.16 The court must give greater weight to the need to protect the child from harm than to the benefit of the child having a meaningful relationship with both her parents.17 Furthermore, the court is required to take into account any family violence involving the child or a member of the child’s family, and any relevant inferences that can be drawn from a family violence order that applies, or has applied, to the child or a member of her family.18 Other provisions in Part VII are intended to protect children and their family members from the effects of post-separation family violence. Under section 60CG(1), the court must ensure that a parenting order is consistent with an existing family violence order and does not expose a person to an unacceptable risk of family violence, insofar as it is possible to do so consistently with the child’s best interests.19 A party to proceedings under Part VII who is aware of a family violence order applying to the child or a member of her family is obliged to inform the court of the order, while a person who is not a party to the proceedings may inform the court of such 14 Ibid s 4AB(3).

15

Ibid s 60CA.

17

Ibid s 60CC(2A).

16

Ibid s 60CC(2).

18 Ibid ss 60CC(3)(j), 60CC(3)(k); see also Richard Chisholm, ‘The Family Law Violence Amendment of 2011: A Progress Report, Featuring the Debate about Family Violence Orders’ (2011) 25 Australian Journal of Family Law 79.

19

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FLA s 60CG(1).

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an order.20 Taken together, the provisions in Part VII indicate that family violence is relevant both to the assessment of the child’s best interests and the determination of how parenting orders should be framed.

Nonetheless, Part VII does not provide much guidance to judges on what parenting orders are appropriate where there is a proven history of family violence. Strickland and Murray observe that the complex interrelationship between the various provisions in the Part ‘creates the impression that a substantiated allegation of family violence will automatically mean that the court would order that a child spend no time with a violent parent’.21 However, the outcome of proceedings is not always an order denying any face-to-face contact between the perpetrator and the child. While the 2011 amendments sought to provide greater protection to children and families at risk of violence and abuse,22 family violence is still only one consideration among many that plays into the court’s determination of the appropriate parenting orders in the circumstances.23 Due to the dearth of guidance in Part VII of the FLA, many judges have relied on the Family Court’s Family Violence Best Practice Principles (the BPP). The BPP are applicable in all cases involving a history of family violence or a risk of family violence.24 The BPP draw extensively on the social science literature on different types of family violence. Judges are called upon to categorise past violent behaviours to determine the ‘magnitude of risk’ to the child in the future.25 Where the court finds that there has been a history of violence or an unacceptable risk of violence, the factors which may be considered in determining appropriate contact orders include the effect of the violence of the child and the parent with whom the child is living, the extent to which the perpetrator has accepted responsibility for the violence and the consequences to the child if an order

20 Ibid ss 60CF(1), 60CF(2).

21 22 23

Strickland and Murray, above n 1, 78.

Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth) 1.

Strickland and Murray, above n 1, 78-9.

24 Family Court Family Violence Committee, Family Violence Best Practice Principles (April 2013) Family Law Courts <http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/ Home/Publications/Family+Law+Courts+publications/fv_best_practice_for_flc>.

25 Ibid.

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is made which denies any face-to-face contact with the perpetrator.26 The court is more likely to deny any face-to-face contact in cases where there is a history of coercive controlling violence.27 The BPP suggest that this type of violence is associated with a greater risk of post-separation violence than situational couple violence, while its perpetrators ‘are more likely to have difficulties parenting’.28 While the BPP are a useful resource for judges, some commentators have expressed concern that they are simplistic and ‘overly focus attention on classification, to the possible detriment of impact’.29 Furthermore, the BPP has no binding legal force.30 There is also no sound legal basis for judges to have direct recourse to social science literature: Rathus indicates that research on family violence does not fall within the ambit of section 144 of the Evidence Act or the doctrine of judicial notice.31 For these reasons, the FLA should be amended to provide more guidance to judges on the circumstances in which face-to-face contact between the perpetrator and the child should be subject to conditions or denied altogether.

A proposal for reform Part VII of the FLA should include a presumption against unsupervised face-to-face contact where there is a proven history of violence against the child or a member of her family. This presumption can be displaced if the court is satisfied that the child will be safe with the perpetrator and an order for unsupervised face-to-face contact is otherwise appropriate.32 The factors that the court should be required to consider are discussed below. Where any particular factor or combination of factors raises serious concerns about the safety of the child or her family members or indicates that an order for any face-to-face contact would be inappropriate, the 26 Ibid.

27

Strickland and Murray, above n 1, 79.

29

Strickland and Murray, above n 1, 79-80.

28

Family Court Family Violence Committee, above n 27.

30 Richard Chisholm, Attorney-General’s Department (Cth), Family Courts Violence Review (2009) 273.

31 See generally Zoe Rathus, ‘A Call for Clarity in the Use of Social Science Research in Family Law Decision-Making’ (2012) 26 Australian Journal of Family Law 81.

32 This presumption would be similar to that contained in the Care of Children Act 2004 (NZ) ss 60, 61.

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court should make an order denying any face-to-face contact between the perpetrator and the child.

Seriousness and incidence of the violence The physical and psychological safety of the child should be the most important consideration in the making of parenting orders where there is a history of family violence. The court should have regard to the seriousness and incidence of the violence to determine the magnitude of future risk to the child. As judges are not social scientists, they should not be encouraged to categorise past violent behaviours using typologies of family violence. Nonetheless, the legislation might give examples of behaviours that constitute serious violence, drawing on the social science literature on coercive controlling violence. While it is not disputed that severe or ongoing situational couple violence and separation-instigated violence can endanger children, the research indicates that victims of coercive controlling violence are the most likely to be at risk following separation.33 Accordingly, the court should make orders denying face-toface contact where the perpetrator has engaged in serious coercive violence in the past and has either used or threatened to use violence against his partner following separation.

Perpetrator’s willingness to accept responsibility The perpetrator’s willingness to accept responsibility for his or her behaviour will be relevant to the court’s assessment of the magnitude of future risk to the child. In cases where a perpetrator disclaims responsibility for past acts of violence and refuses to participate in therapy or treatment for mental health and substance abuse problems, the court should generally make an order denying face-to-face contact. While an order denying contact should not be used to punish a parent for his or her behaviour, a perpetrator’s refusal to accept responsibility for violence may suggest that he or she is entirely unable to fulfil the personal and moral responsibilities of parenthood.34 More significantly, there is a greater risk of future harm to 33 Margo Wilson and Martin Daly, ‘Spousal Homicide Risk and Estrangement’ (1993) 8 Violence and Victims 3; see generally Miranda Kaye, Julie Stubbs and Julia Tolmie, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 93.

34 See generally Patrick Parkinson, ‘Violence, Abuse and the Limits of Shared Parental Responsibility’ (2013) 92 Family Matters 7, 15.

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the child where the perpetrator has not sought counselling or treatment for underlying problems.

Perpetrator’s reasons for seeking contact There is evidence to suggest that a child is at greater risk of physical or psychological harm where the perpetrator seeks contact for the sole or primary purpose of harassing his or her ex-partner. In one study, more than two thirds of victims of coercive controlling violence expressed concern about the treatment of their children during contact visits.35 Some victims reported that their children had been neglected, while in other cases perpetrators used the children to deliver threatening messages to the victim.36 It would be impossible for the court to make windows into men’s souls, but judges should be highly cautious in making orders for face-toface contact where there is any suggestion that the perpetrator seeks contact for the purpose of harassing his or her ex-partner.

Other considerations While the safety of the child should be the most important consideration in the making of parenting orders where there is a history of family violence, the court should also have regard to the views of the child and the safety of the child’s family members. Even where the court is satisfied that the child will be safe with the perpetrator, it may be inappropriate to make an order for face-to-face contact where the child is strongly opposed to spending time with the perpetrator. Furthermore, an order for face-to-face contact will not be appropriate where the court believes that there is a serious risk of violence to the child’s family members which cannot be resolved by the imposition of conditions such as supervision.37 Conclusion In this essay it has been argued the FLA does not provide judges with enough guidance on the circumstances in which they should impose an order denying face-to-face contact between the perpetrator and the child.

35 Kaye, Stubbs and Tolmie, above n 33, 29.

36 Ibid.

37

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See generally Kaye, Stubbs and Tolmie, above n 33.

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The legislation should be amended to include a presumption against unsupervised contact where the court is satisfied that a party to the proceedings has engaged in violence against the child or a member of the childâ&#x20AC;&#x2122;s family. Where this presumption is enlivened, the court should be required to consider a list of factors in determining whether to allow contact. Orders denying any face-to-face contact should only be imposed where there is a history of serious coercive violence that presents a risk to the safety of the child or her family or where an order for unsupervised face-to-face contact would be inappropriate. While this proposed reform would go some way towards remedying the gaps and uncertainties in the current law, it would require the application of more resources to assist the court in assessing the veracity of allegations of family violence and the ongoing risk of harm to the child and members of the childâ&#x20AC;&#x2122;s family where there is a proven history of violence.38

38 See Parkinson, above n 4, 139.

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