Mark Rix

Liberty, national security and the Big Society

Alison Green et al. — Mon, 07 Nov 2011 14:52:19 PST

The Big Society agenda of the UK Coalition Government has had a significant impact on welfare policy as well as the terms of the debate about how welfare should be provided for and regulated. The ripples have travelled far beyond the UK and similar discussions are occurring in different national contexts. One such has been Australia, where commentators and policymakers are considering the ramifications of a Big Society approach for domestic social policy (Cox 2010). This debate no longer focuses on the ‘New Public Management’ agenda with its emphasis on outsourcing to third and private sector providers and the creation of market-like structures and mechanisms for welfare provision. Instead, there is a renewed interest in strengthening communities and developing the voluntary capacities within them to enable them to shoulder the responsibility for service delivery, community safety and reinforcing social cohesion. Nevertheless, effectively the objectives are the same: smaller government, reduced social expenditures and an individualistic society.

The Case of Dr Mohamed Haneef: An Australian 'Terrorism Drama' with British Connections

Mark Rix — Tue, 03 May 2011 20:51:05 PDT

This article examines the treatment of Dr Mohamed Haneef, an Indian doctor arrested under Australia‟s anti-terrorism legislation in July 2007 as Australian authorities including the Australian Federal Police, Commonwealth Director of Public Prosecutions, Australian Security Intelligence Organisation, (wrongfully) believed that he was linked to the terrorist attack at Glasgow airport in June 2007. The actions and responses of these two agencies, and the subsequent judicial inquiry are reviewed in the light of the media‟s role and press coverage as the case unfolded.

Counter-Terrorism and Information: The NSI Act, fair trials and open, accountable government

Mark Rix — Sun, 13 Feb 2011 20:59:01 PST

This paper investigates Australia’s National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (hereafter, the NSI Act) focusing on its provisions for protecting national security information. The investigation highlights the broad and encompassing definitions of ‘national security’ and ‘information’ used in the Act and considers the measures it prescribes for the protection of so-called ‘security sensitive’ information in Federal civil and criminal proceedings. The paper then examines the implications of the definitions and measures for a suspect’s prospects of receiving a fair trial in terrorism cases. Here, the paper highlights the serious restrictions the Act places on a legally-aided person’s right to engage a legal representative of their own choosing. These restrictions are then compared with those obtaining in some comparable jurisdictions. As important as the NSI Act’s definitions and measures are for the way in which they limit a terrorism suspect’s chances of a fair trial, their significance extends well beyond this very serious issue to even deeper concerns. These relate to the secrecy and lack of transparency surrounding the conduct of terrorism cases, the opaqueness of the processes for classifying and protecting information, and the potential for tendentious or improper use of information by the political executive and national security agencies enabled by the dearth of avenues for external, independent scrutiny. At the core of these concerns, then, are issues of the accountability and integrity of the government and of the agencies under its direction. Using the experience of Mohamed Haneef as a case study, the final section of the paper investigates the important role that defence counsel, the media and other independent parties can play to facilitate public scrutiny of the conduct of terrorism investigations and trials and in exposing the improper use sometimes made of protected information by the political executive in attempting to influence the conduct of these cases.

Counter Terrorism and Access to Justice: Public Policy Divided?

Mark Rix — Sun, 13 Feb 2011 20:33:51 PST

This paper will consider the manner in which Australia’s counter-terrorism strategy has been operationalised, highlighting the implications of its strategy for access to justice. Access to justice, encompassing the ability of individuals, including persons suspected of terrorism offences and non-suspects, effectively to exercise their human and legal rights, can be an important curb on state power. But, in another equally important sense, providing individuals with access to justice also protects national security by helping to ensure that the law enforcement and security agencies focus their efforts on genuine terror suspects rather than wasting their resources on investigating and prosecuting genuine non-suspects. Accordingly, access to justice in the context of counter-terrorism, and more broadly, involves such things as suspects’ (and, non-suspects’) enforceable rights: to be represented by competent, independent and affordable legal counsel (thus including the availability of adequate legal aid); to the presumption of innocence; to a fair trial; not to be convicted of a terrorism offence through the use by police, intelligence and prosecuting authorities of evidence that would be inadmissible in ‘normal’ criminal proceedings; not to be subject to indefinite detention particularly so-called pre-charge detention; and, so on. The paper will assess the performance over the course of the war on terror of the Australian Government using the access to justice benchmark. It will examine how public policy in the area of counter-terrorism, particularly as it affects a legally-aided person’s choice of legal representative, has been shaped by such influences as the counter-terrorism models and precedents provided by ‘leading’ Western states like the United States and Great Britain and how these ‘extraneous’ factors have interacted with ‘indigenous’ political, social and security pressures to shape Australia’s counter-terrorism strategy especially as it has affected access to justice.

Legal Aid, the Community Legal Sector and Access to Justice: What has been the Record of the Australian Government?

Mark Rix — Sun, 13 Feb 2011 20:33:50 PST

This paper will consider the record of the Australian Government in supporting and promoting the work of state and territory Legal Aid Commissions and community legal centres. Legal Aid and the community legal sector play an important role in providing predominantly, but not exclusively, poor and otherwise disadvantaged Australians with legal and related services helping to ensure that they are able to achieve some measure of access to justice. Beginning in 1997 with the decisions of the Government to cease funding Legal Aid Commissions for matters falling under state and territory law and to implement purchaser-provider funding arrangements for the two agencies, it will consider how these decisions have affected the agencies’ ability to provide access to justice for their clients.

Carer Eligibility and Needs Assessment for the National Respite for Carers Program: Consultation Paper

A. Owen et al. — Sun, 13 Feb 2011 20:33:49 PST

Can Citizenship be Gender-neutral and -inclusive? Exploring the possibilities of social and legal citizenship

Mark Rix — Sun, 13 Feb 2011 20:33:48 PST

This paper will consider whether extending the notion of social citizenship to include legal citizenship offers the possibility of developing a gender-neutral and -inclusive conception of citizenship. The notion of legal citizenship encapsulates the view that all people are equal before the law and have a right to access to justice. Legal citizenship extends the idea of social citizenship, first developed by T.H. Marshall, by emphasising the importance of fair, equitable and effective access to the legal institutions and processes that enable individuals to give effect to their social rights. The social rights included in Marshall’s notion of social citizenship refer to the necessities of life, without which it is impossible to participate fully in the public sphere of society. Legal citizenship is closely associated with social citizenship in that it calls attention to the importance of access to justice and equality before the law of all citizens in any conception of a just, fair and inclusive society. However, it marks an important development in the notion of social citizenship because it is neutral on the issue of gender. Unlike social citizenship as conventionally conceived, it does not regard paid employment as an eligibility requirement for admission to the public sphere and access to the rights of citizenship. Access to the rights included in social citizenship was considered to be largely conditional on the status held by an individual vis-à-vis the paid workforce. This meant that women’s traditional roles of child bearer, caregiver and homemaker were usually regarded as being inconsistent with social citizenship and full participation in the public sphere. While it is gender-neutral, legal citizenship like social citizenship points to the important role played by the institutions, practices and social support mechanisms that enable individuals to be full, active and informed members of the society to which they belong. The paper will develop the notion of legal citizenship and explore to what extent it is able to escape the limitations of social citizenship. In doing so, it will briefly consider legal citizenship’s own shortcomings in the Australian context with reference to the Federal Government’s mutual obligation regime and Welfare to Work legislation.

(Re)form with Substance? Restructuring and governance in the Australian health system 2004/05

M. Rix et al. — Sun, 13 Feb 2011 20:33:48 PST

The Australian health system has been the subject of multiple reviews and reorganisations over the last twenty years or more. The year 2004–2005 was no different. This paper reviews the reforms, (re)structures and governance arrangements in place at both the national and state/territory levels in the last year. At the national level some progress has been made in 2004/05 through the Australian Health Ministers' Council and there is now a national health reform agenda, albeit not a comprehensive one, endorsed by the Council of Australian Governments (COAG) in June 2005. Quality and safety was an increasing focus in 2004–2005 at both the national and jurisdictional levels, as was the need for workforce reform. Although renewed policy attention was given to the need to better integrate and coordinate health care, there is little evidence of any real progress this last year. More progress was made on a national approach to workforce reform. At the jurisdictional level, the usual rounds of reviews and restructuring occurred in several jurisdictions and, in 2005, they are organisationally very different from each other. The structure and effectiveness of jurisdictional health authorities are now more important. All health authorities are being expected to drive an ambitious set of national and local reforms. At the same time, most have now blurred the boundary between policy and service delivery and are devoting significant resources to centrally 'crisis managing' their service systems. These same reasons led to decentralisation in previous restructuring cycles. While there were many changes in 2004–2005, and a new national report to COAG on health reform is expected at the end of 2005, based on current evidence there is little room for optimism about the prospects for real progress.

Factors Associated with Research Management in Australian Commerce and Business Faculties

R. MacGregor et al. — Sun, 13 Feb 2011 20:33:47 PST

Measurable research outputs have become part of the overall research management structure within Australian universities has over the past ten years. As such, policy makers and administrators alike have come to regard effective management structures and mechanisms as fundamental components of a research environment capable of generating desired quantities of quality outcomes. This paper is based on empirical research carried out over the past year that surveyed academics from commerce and business faculties in Australian universities. The data shows that factors such as gender, discipline and academic level appear to impinge on the relative importance of components that make up research management.

The contract state and closure of the public sphere: the rise of consumer citizenship?

Mark Rix — Sun, 13 Feb 2011 20:33:46 PST

This paper builds on recent work in Australia and overseas that has considered the implications of New Public Management (NPM) policies for the relationship between governments and citizens. This work calls attention to the drastic reconceptualisation of 'citizenship' and 'citizen' that has been an inevitable consequence of the fundamental changes in the function of the state and purpose of public administration that are integral to NPM. Indeed, while the shape and direction of NPM reforms adopted in different countries have varied in accordance with national political, institutional and cultural priorities, an underlying trend has been the drive to reform the state and public administration in ways that enhance their capacity for emulating the practices and decision-making processes of market-based organisations. In keeping with this trend, the so-called 'contract state' and contractualism have emerged and become dominant in Australia and many other countries. This paper will explore these themes, examining whether a new mode of citizenship, compatible with the contract state, is displacing more traditional notions of citizenship that were associated with the welfare state.

The Australian National Security State and the Third Sector: Who is Really Protecting Australia's National Security?

Mark Rix — Sun, 13 Feb 2011 20:33:45 PST

This paper will consider the implications of the Australian Government’s recent national security and anti-terrorism legislation for its relations with Australian citizens and with third sector organisations, like those comprising the community legal sector, that seek to promote and defend citizens’ civil, political and social rights. The series of bills enacted by the Australian Parliament since September 11 2001, the culmination of which has been the Anti-Terrorism (No. 2) 2005 Bill, removes many of the freedoms and rights that Australians have for many years been able to take for granted. The 2005 Bill’s detention and control orders, for example, degrade the importance of the role of formal trials and the production of credible evidence by the prosecution in the administration of justice in Australia. It also includes a newly-defined crime of sedition that empowers the Australian Government and the national security authorities to invoke the sedition provisions when they merely suspect a person of seditious intent to use or threaten the use of force. The 2005 Bill, and the many other national security and anti-terrorism acts, has placed a great burden of responsibility on third sector organisations which seek through their activities to enhance the inclusiveness and cohesiveness of the Australian community. They will increasingly be called upon, particularly by ‘suspect’ groups and individuals, to ameliorate the harmful social and psychological effects of intimidation, victimisation and persecution perpetrated by the authorities in the name of protecting Australia’s national security. At the same time, these organisations will have to deal with a society turned against itself in which differences of language, ethnicity and religion have become a frontier separating the included and protected from the excluded and feared. This paper will consider the impact of these trends and developments on third sector organisations committed to fostering a more tolerant, inclusive and cohesive Australian society. It will focus in particular on the likely implications of the national security legislation for the community legal sector. The sector is characterised by its commitment to the objective of improving access to justice and ensuring equality before the law for all Australian citizens and residents. It thus plays an important but largely unheralded role in protecting Australia’s genuine national security from the potentially corrosive effects of the Government’s national security and anti-terrorism legislation.

Australia's Anti-Terrorism Legislation: The National Security State and the Community Legal Sector

Mark Rix — Sun, 13 Feb 2011 20:33:45 PST

This paper considers the implications for the community legal sector of the Australian Government’s recent national security and anti-terrorism legislation. Critics of the legislation have deep concerns that, by giving the police and intelligence services considerable new powers in the areas of arbitrary arrest and detention, it will lead to the significant erosion of rights and freedoms that Australians have long been able to take for granted. Other concerns with the legislation relate to the use of force, sedition, and legal representation for those held in preventative detention. In addition, the legislation has no adequate protection against the intelligence services and police misusing or abusing their new, extended powers. Community legal centres (CLCs), that comprise the community legal sector, have the important role of informing citizens of their basic rights and assisting them in exercising these rights in their dealings with government and its agencies. This paper will consider what effects the anti-terrorism legislation will have on the community legal sector’s effectiveness in playing this role. The sector, which the Australian government relies on and funds to provide legal services to some of the most disadvantaged members of the Australian community, has as its raison d’être improving access to justice and equality before the law for all Australians. The paper will also consider the impact of the anti-terrorism legislation on the relationship between the government and the sector.

Performance Contracts, Corporate Governance and the Third Sector: The Case of the NSW Community Legal Sector

Mark Rix — Sun, 13 Feb 2011 20:33:44 PST

This paper will investigate the effects of performance contracts on the governance of third sector organisations to which governments have outsourced responsibility for delivery of important human and welfare services. As governments have retreated from direct delivery of such services under the impetus of the New Public Management (NPM) reform agenda, they increasingly have had to rely on third sector organisations to play the role of service providers. From a public administration point of view, dominance of the purchaser/provider funding and regulatory model has been one of the most significant results. Under this model, performance contracts or so-called ‘service agreements’ are used to manage the relationship between the government as purchaser of services and the service provider organisations. These contracts or agreements subject provider organisations to a strict funding, governance and accountability regime. The danger for many third sector organisations is that in striving to meet the performance, governance and accountability criteria set down in the contracts, their ability to meet the needs of the communities they serve becomes seriously constrained and compromised. This paper will explore these themes by considering the recent experience of the NSW community legal sector. The NSW community legal sector is comprised of about 40 community legal centres (CLCs) scattered throughout the state of NSW. Like its counterparts in the other states and territories that belong to the Australian Federation, the NSW sector has as its self-proclaimed raison d’être the improvement of access to justice and equality before the law for all Australians, in particular, poor and otherwise disadvantaged citizens. However, all of its funding is provided by the Australian and NSW governments the conditions for acceptance and continuation of which are contained in service agreements with the two governments. This paper will report the findings of a recent survey of NSW CLCs conducted by the author that focused on how the performance, governance and accountability requirements contained in the agreements affect the work of centres. The views of key personnel of the surveyed CLCs were sought on the effects of these requirements on a centre’s ability to provide and improve access to justice for the individuals and communities it serves. The findings suggest that service agreement requirements do have a significant impact on the work of centres, imposing onerous time and resource constraints that divert them from their core business. However, it appears that inadequate government funding remains the greatest concern of CLC workers because it so seriously limits the capacity of centres and their staff to meet the legal needs of their clients.

Australian and the 'War against Terrorism': Terrorism, National Security and Human Rights

Mark Rix — Sun, 13 Feb 2011 20:33:43 PST

This paper considers whether in the ‘war against terrorism’ national security is eroded or strengthened by weakening or removing the human rights of the individuals who constitute the polity. It starts with the view that national security is, at its most fundamental, founded upon the security and liberty of the person from criminal and violent acts, including terrorist attacks. Such attacks, and the individuals and groups who perpetrate them, constitute a grave threat to the peace and security of nations the world over and thus endanger the security and liberty of the individuals who make up their populations. Governments are therefore compelled to use the machinery of the state to protect the nation and the individual from these attacks. However, the paper is based on another, equally important, assumption. This is that the defence of national security requires individuals to be protected from the arbitrary exercise of state power even in situations where the state claims to be acting to protect national security and individual security against grave threats such as terrorist acts. The rule of law not only protects individuals from such an exercise of state power by protecting their human rights, in so doing it also protects the peace and security of the nation from excessive and unchecked state power. But what happens when the rule of law is overturned by governments declaring that they are protecting national security from the terrorist threat? Who or what is then able to protect the individual and the nation from the state? This paper will take up these important questions by considering the implications of the anti-terrorism legislation that has been introduced in Australia since September 2001. It will also consider whether Australia’s national security has been enhanced or damaged by this legislation.

With reckless abandon: Haneef and Ul-Haque in Australia's 'War on Terror'

Mark Rix — Sun, 13 Feb 2011 20:33:42 PST

This brief paper considers the political and social implications of the manner in which Australia has prosecuted the so-called ‘war on terror’. It does this by investigating relevant aspects of Australia’s anti-terrorism legislation and the performance of Australian security and law enforcement agencies, namely, the Australian Security and Intelligence Organisation (ASIO) and the Australian Federal Police (AFP). Focusing on the Haneef and Ul-Haque cases, the paper will consider how the political climate created by the former Federal Government’s legislative approach to the war on terror has influenced the performance of these organisations. By focusing on these two cases, the paper will demonstrate how racial, ethnic and religious stereotyping have informed and shaped Australia’s conduct of the war on terror. It will investigate the real potential for social division, and heightened national insecurity, that flows from the use and propagation of these stereotypes. The paper will also highlight the unfairness and prejudice that are inherent to racial and religious stereotyping. Finally, the paper will consider whether the Rudd Labor Government’s approach thus far to the war on terror differs in any significant measure from that of its predecessor and evaluate the prospects for real, progressive change.

Strategies for Gain - the evidence on strategies to improve the health and wellbeing of Victorian children

K. Eagar et al. — Sun, 13 Feb 2011 20:33:42 PST

Victorian children enjoy, by both national and international standards, a high level of health and wellbeing. Nevertheless, there are important opportunities for improvement. To this end, the Department of Human Services (DHS) Victoria established the Children’s Health and Wellbeing Policy Flagship project, of which this review is a part. Its purpose is to guide and structure the Department’s efforts to support and improve the health, development, learning and wellbeing of Victorian children. The project will assist DHS in determining strategic investments (or ‘best bets’) for improving the health and wellbeing of children in Victoria. This report contributes to the Children’s Health and Wellbeing Policy Flagship project by, in summary, reviewing the international and national evidence and, based on that, identifying what DHS might do to improve the health and wellbeing of Victorian children.

Discipline and threatened punishment: the theory of nuclear deterrence and the discipline of strategic studies, 1946-1960

Mark Damian Rix — Sun, 13 Feb 2011 20:33:41 PST

This thesis reconstmcts the history of the theory of nuclear deterrence and the discipline of strategic studies in the period 1946 to 1960. The key elements of the theory were the view that nuclear weapons were qualitatively different from conventional weapons, that "deterrence" was the sole purpose of nuclear weapons, and that in order to fulfil this purpose the weapons' retaliatory capability had to be protected from enemy attack. This amounted to a prescription for the non-use of nuclear weapons in any capacity by either side, It is argued that the theory of deterrence underwent a process of systematisation and formalisation during the 1950s. This process involved the application of systems analysis and game theory to strategic analysis and led to the emergence of strategic studies.

It is also argued that strategic studies was developed in emulation of economics, particularly neo-classical and quantitative economics. The strategic theorists who were responsible for the development of the theory and discipline equated quantitative strategic analysis with good strategic analysis. Both systems analysis and game theory served as vehicles for the application of the methods of quantitative economics to the analysis of "deteixence" and its requirements. As the systematisation and formalisation of the theory took the view that "deterrence" was the sole purpose of nuclear weapons to a higher level of absttaction so did the theory, and the discipline, become increasingly irrelevant to the practical concems of American policy makers and mihtary planners. The policy makers and planners saw no qualitative difference between conventional and nuclear weapons. They therefore did not accept the view that die sole purpose of nuclear weapons was "deten-ence" as die theorists understood die term. Moreover, by die mid 1950s the military planners in particular had come to the conclusion that die only way to "deter" an enemy nuclear sttike was to pre-empt it. It is argued in the thesis that the theorists' awareness of the yawning gap between their and the policy makers' and planners' conception of the purpose of nuclear weapons was of paradigmatic importance for the theory and the discipline.