COURT OF
CONSCIENCE a social justice journal Issue 6, 2012
UNSW Law Society
Welcome to the sixth issue of the Court of Conscience. A wonderful diversity of confronting, hopeful and timely material awaits you. Warmest thanks to our contributors, without whom we couldn't bring you such worthy reading.
COURT OF CONSCIENCE Issue 6, 2012
Contents
Editor In Chief: Louisa Tan
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Editorial Committee: Erin Jardine & Giridhar Kowtal Social Justice VP: Simon Cho Design: Michelle Montgomery freelance@floralia.net.au Email address: courtofconscience@unswlawsoc.org Website: http://www.unswlawsoc.org/?q=courtofc Images: Flickr Creative Commons: http://www.flickr.com/ Cover: Michelle Montgomery masthead FONT: Homestead designed by Luke Lisi http://work.lisidesign.com/ http://www.losttype.com/
Contributions If you would like to contribute an essay, article or opinion piece, please contact Court of Conscience courtofconscience@unswlawsoc.org Printed by Print Portal ISSN 1839-7204 © UNSW Law Society 2012 Disclaimer: The views expressed by the contributors are not those of the editors or the UNSW Law Society.
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Recognising Australia’s
Indigenous Peoples in the Constitution Professor George Williams, UNSW
07
Violence against women
in Australia from an international perspective: The study tour of the United Nations Special Rapporteur on violence against women Lucia Noyce
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Behind closed doors: ‘outing’
the private AND public cost of violence against women Andrea Durbach
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TEACHING FEMINIST LEGAL
THEORY IN AN INDIAN LAW COLLEGE Christine Forster
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on domestic violence Julia Erin Petinos Beyond Human Rights: An
International Agreement on Animal Rights? Frances Gibson
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Marriage Equality and
the Civil Union ‘solution’ Maddalena Arnfield
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A VICTORY FOR DEMOCRACY
AND A LOSS FOR UNIVERSAL HUMAN RIGHTS: THE THREAT TO MINORITY GROUPS IN THE “NEWLY DEMOCRATIC” REPUBLIC OF EGYPT Marie Iskander
51
Achieving Public Law Goals
through Private Law Means: Is This Social Justice? Greg Weeks
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Unrighteous Transit Lines
Migrant vulnerability, human rights and institutionalized corruption along Mexico’s southern border Jacqueline Fetchet
9 6 75 83
discrimination: ON recognition
of right to culture Rishika Pai
‘ Tip of the iceberg’: The
Injustice of False Confessions Corrie Eames
South Africa: A Land
of Contrasts Weller Zheng
Professor George Williams University of New South Wales1
Recognising Australia’s Indigenous Peoples in the Constitution
P
rime Minister Julia Gillard received a report in January 2012 on recognising Aboriginal people in the Australian Constitution. It was delivered by an expert panel of Indigenous, community and business leaders, legal experts and representatives of Australia’s major political parties, who spent the best part of last year canvassing opinion on the issue.
http://www.flickr.com/photos/physio/299473273/
The Prime Minister was told that the Constitution needs to be changed and that this is backed by a clear majority of Australians. This is also supported by prominent Abori ginal leaders, including Patrick Dodson, Mick Gooda, Marcia Langton and Noel Pearson who were all members of the panel. The opposition has participated in a spirit of goodwill, and it has become apparent that it will support enough change to produce a viable and worthwhile referendum. All up, the idea of recognising Aboriginal peoples in the Constitution has become Labor’s best chance of winning a referendum since its solitary success in 1946.
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The starting point for Australia’s political parties is that the Constitution should respect the place of Indigenous peoples in our community. It should recognise their long occupation of this continent and their continuing relationship with traditional lands and waters. Prime Minister John Howard first proposed such a change in 1999, and the panel recommended that this now occur by inserting the following symbolic language into a new section 51A of the Constitution:
Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;
However, positive words and symbolic change will not be enough. The panel also found a strong desire among Australians to see other problems in the Constitution fixed.
Race in the Constitution Australians voted in the 1967 referendum to delete negative references to Aboriginal people from the Constitution. This included removing a direction in section 127 that, in calculating the number of people of the Com monwealth or a State, ‘aboriginal natives shall not be counted’. 2 | Court of Conscience
Unfortunately, two sections remain that treat people unequally because of their race. The first is section 25. It still recognises that the States can disqualify people, such as Aborigines, from voting. The races power in section 51(xxvi) also says that the Federal Parliament can make laws based upon a person’s race. This was put in the Constitution in 1901 to prevent Asians, Pacific Islanders and other races from living in areas reserved for whites or from taking up certain occupations. In the words of Sir Edmund Barton, Australia’s first prime minister, the section permits laws that ‘regulate the affairs of the people of coloured or inferior races’. Separating people according to their race is based upon a discredited 19th-century scientific theory in which a person’s race can determine everything from their intelligence to their suitability for certain roles. Unfortunately, this thinking remains embedded in Australia’s constitutional DNA. The panel recommended that these two provisions be deleted. This has been backed not just by the community, but by members of the federal opposition and conservative legal commentators.
––––––––– Unfortunately, two sections remain that treat people unequally because of their race. The first is section 25. It still recognises that the States can disqualify people, such as Aborigines, from voting.
The hard question is how to limit this new power. Unless it is restricted, laws might still be passed that discriminate against Aboriginal people on the basis of their race. The panel recommended that the new power only be used for the ‘advancement’ of Aboriginal people.
Hard questions Disagreement arises as to what should be inserted into the Constitution in place of the races power. It should not simply be repealed. An important achievement of the 1967 referendum was to extend this power to Aboriginal peoples so that the Federal Parliament can make laws for them in areas like land and health. The best way forward is the panel’s recom mendation of replacing the races power with new federal authority, inserted in section 51A after the symbolic words set out above, to make laws for ‘Aboriginal and Torres Strait Islander peoples’. This would support existing laws, and also future laws that a Labor, Liberal or any other government wishes to see enacted.
1 The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. 2 Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group. The practical impact of this change would be significant. A freedom from racial discrimination in the Australian Constitution applying to all laws and programs would mean that a law or program could be challenged in the courts if it breached the guarantee. Examples of recent federal laws that might be challenged on this basis include the Native Title Amendment Act 1998 (Cth), which implemented the Howard Government’s ‘ten point plan’ for native title after the Wik decision. In seeking to achieve, in the words of the Deputy Prime Minister Tim Fischer, ‘bucketloads of extinguishment’, the Act overrode the Racial Discrimination Act 1975. This was achieved through section 7 of the new Act, which provides that the Racial Discrimination Act has no operation where the intention to override native title rights is clear.
I share the concerns of people such as Indigenous advocate Warren Mundine and Shadow Attorney General George Brandis that ‘advancement’ is not the right term. It is a vague and likely unhelpful word. It also carries unfortunate baggage from the time when discriminatory measures against Aboriginal people were justified on the basis that they were for their ‘advancement’.
A similar suspension of the Racial Discrimin ation Act was achieved under the legislation that brought about the Northern Territory intervention. Both of these statutes are ex amples of laws that could not stand in the face of a constitutional guarantee of freedom from racial discrimination. It would also not be possible in the future to suspend the Racial Discrimination Act so as to permit racial discrimination.
Prohibiting racial discrimination
Getting broad support
The better option is the panel’s recommen dation that a new section prohibit racial discrimination in Australian law. This would protect all Australians. Similar clauses have operated effectively in other national cons titutions. The panel’s new proposed sec tion 116A would read:
Unfortunately, and not surprisingly, this idea has attracted criticism from conservative quarters, and seems unlikely to win the support of the opposition. Even though I strongly favour such a clause, I would also be the first to say that it should not be put to a referendum unless it has bipartisan support. Australia’s dire record, with Court of Conscience | 3
––––––––– Labor’s 96% referendum failure rate is an exact
match for its failure to attract opposition support.
www.flickr.com/photos/fransdewit/4203644975
nations, such a settlement is normally expressed in a treaty or like instruments. Australia is alone in the Commonwealth in not having entered into such agreements with its Indigenous peoples.
8 successes out of 44 attempts, demonstrates the futility of seeking to win a referendum with out broad political support. Recent political debate in Australia has been characterised by fierce and often bitter partisan ship. However, this has not infected the panel’s work. There is a genuine opportunity here to achieve cross party backing. Opposition members such as Brandis have been forthright and constructive. They were represented on the panel by Ken Wyatt, who became the first Aboriginal member of the House of Representatives in 2010 when he was elected Liberal member for Hasluck in Western Australia. The Liberal party also has strong credentials in this area, from Robert Menzies and Harold Holt in the 1967 referendum, to Howard’s more recent actions. The final set of changes that go to a referendum will need to attract broad cross-party support, and so will not be as bold and progressive as many will want. The changes may end up only providing respect and recognition for 4 | Court of Conscience
Aboriginal peoples in the Constitution, com bined with the deletion of race based clauses and a new, limited federal power with respect to Aboriginal peoples.
The Constitution is not the right place to set out the specific terms of a treaty. The best role that it can play is to facilitate the making of such agreements in the future. Hence, the Constitution should contain a provision that permits the making of agreements between governments and Indigenous peo ples. It should also give those agreements, once ratified by the relevant parliament, the force of law. This would not guarantee that a treaty would be made. However, it would provide, for the first time in Australia, a clear path for doing so, and could also create an expectation that this is a necessary and desirable part of Australia’s future constitutional development.
These outcomes would certainly be more modest than those proposed by the panel, but they would still be worthwhile. An example of this is the 1967 referendum, which itself made only minor changes to the Constitution, but has since been heralded as an important political and legal victory for Aboriginal peoples.
Winning a referendum
Constitutional change is extremely difficult to achieve, and must often proceed in an incremental fashion. These changes would still amount to significant improvements to the Constitution, and could also be used as a platform upon which to build support for further reforms.
A referendum loss must be avoided at all costs. A majority ‘No’ vote at a referendum to recognise Aboriginal Australians in the Constitution would not just be a vote for the status quo, it would amount to an explicit rejection of their aims. This could put the fight for Aboriginal recognition and rights back many years.
For example, I would like to see the Constitution one day speak to the longer-term settlement that has yet to be achieved between Australian governments and Indigenous peoples. In other
The single greatest reason for Australia’s poor referendum record is political mismanagement. Time after time governments have put poor proposals to the people, have taken voters for
The panel’s work and recent public debate demonstrates that this referendum can be won. This should not be surprising. After all, the 1967 referendum achieved a record Yes vote of over 90%. The task now is to build on the panel’s work to bring about a vote of equal significance.
granted or left them in the dark, and have asked Australians to approve major constitutional changes that have divided their political leaders. The Australian Labor Party is responsible for the lion’s share of these failures. It has put 25 referendums, with only one success. This was a 1946 proposal by Prime Minister Ben Chifley to grant federal power over social ser vices, including maternity allowances, widows’ pensions and unemployment benefits. Labor’s 96% referendum failure rate is an exact match for its failure to attract opposition support. The only time Labor went to a referendum with such support was when opposition leader Robert Menzies backed Labor’s 1946 poll. The 1946 referendum provides useful lessons. Chifley’s social services proposal did not go to the people in the form Labor wanted. Menzies pressed for an amendment to ensure that the Commonwealth could not, in providing the new benefits, ‘authorise any form of civil conscription’. Labor wisely accepted the amendment, and in so doing won opposition support and then the referendum. Labor must similarly accept opposition changes to the expert panel’s recommen dations. The final proposal must be ‘owned’ not just by the government, but by all major political parties. It must then also be backed by a strong community campaign for change. The result can be a worthwhile referendum that will improve our Constitution and mark an important milestone in our democratic development.
Reference 1 This has been developed from an article by the author published in the Autumn 2012 issue of Australian Options.
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Lucia Noyce
Embargoed until release of Commission Report
Violence against women in Australia from an international perspective: The study tour of the United Nations Special Rapporteur on violence against women
T
raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. – General Recommendation No. 19 of the United Nations Committee on the Elimination of Discrimination Against Women.1
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The office of the United Nations Special Rap porteur on violence against womenwas created by the United Nations Commission on Human Rights in 1994 as part of the ‘special proce dures’ process. Reporting directly to the refashioned Human Rights Council, the Rappor teur’s mandate includes investigating and res ponding to reports of violence against women, making appropriate recommendations towards its eradication, and developing comprehensive strategies to combat it globally. The current Special Rapporteur, Ms. Rashida Manjoo, con ducted a study tour of Australia in April 2012 to gather information on violence against women in Australia and to identify measures to address this. The tour was co-hosted by the Australian Human Rights Commission and the Depart ment of Families, Housing, Community Ser vices and Indigenous Affairs (FaHCSIA). During the Tour I travelled with the Special Rap porteur as an intern for the Australian Human Rights Commission and undertook to document her meetings and consultations. This August, the Commission released a report on the tour that outlines the key issues on violence against women in Australia that were raised during the Tour. The following is an account of the report and some personal reflections on my travels with the Rapporteur.
The tour Since 2009, the Special Rapporteur position has been held by Rashida Manjoo, a part-time professor of public law at the University of Cape Town and former parliamentary commissioner for South Africa’s Commission for Gender Equality. United Nations Special Rap por teurs are experts in their respective fields, covering thematic issues such as torture or cultural rights, or countries and territories such as Sudan and the Palestinian Territories. They are appointed as un-paid experts, not staff of the UN, their budgets dedicated instead to their travel, research and supporting staff. Like most entities within the UN system, their mandates are funded by donations from member states. Special Rapporteurs generally undertake coun try visits at the invitation of the national govern 8 | Court of Conscience
––––––––– Some reports
indicate that Aboriginal and Torres Strait Islander women are up to 45 times more likely to experience violence than non-indigenous Australian women.8 ment. However, the Rapporteur’s study tour to Australia was not an official visit. The ten-day tour started in Sydney, New South Wales then traversed to Perth and Fitzroy Crossing in Western Australia, to Alice Springs in the Northern Territory to Melbourne, Victoria and finally to Canberra in the Australian Capital Territory.2 Ms. Manjoo met with federal, state and territory government representatives, wo men’s crisis shelter staff, academics and com munity representatives, and AttorneyGeneral Hon. Nicola Roxon MP.3 Ms Manjoo met with diverse communities including Aboriginal and Torres Strait Islander communities from both urban and rural areas, women with disability, women of diverse sex, sexuality and/or gender, and culturally and linguistically diverse women. Each interaction was defined by Ms. Manjoo’s diplomatic but forthright presence and expansive knowledge and insight into international patterns of gender-based violence.
Violence against women in Australia Gender-based violence is the “most widespread human rights abuse in the world”,4 and Australia is no exception to this global reality. One in three women in Australia has experienced
violence since the age of 15, and one in five have experienced sexual assault.5 This violence is most frequently inflicted by male perpetrators known to the victims.6 Populations most at risk include young women, women with a disability, mi grant and refugee women, and Aboriginal and Torres Strait Islander women.7 Some reports indicate that Aboriginal and Torres Strait Islander women are up to 45 times more likely to experience violence than non-indi genous Aus tralian women.8 In 2011, 24,903 domestic Apprehended Violence Orders (AVOs) were filed in NSW, in addition to another 7,194 personal AVOs.9 The impact of these statistics goes beyond the obvious human toll on the victims and their children. There are economic and of course hu man rights implications that are often excluded from accounts of gender-based violence, ob scur ing the full picture. It is estimated that violence against women and children will cost the Australian government $15.6 billion by 20212022.10 Domestic and family violence is the leading cause of homelessness in Australia.11 As articulated in CEDAW General Recommendation No. 19, gender-based violence grossly inhibits victims’ ability to enjoy their other human rights, including basic civil, political, economic, social and cultural rights. It interferes with their capa city to earn incomes, participate in civil society, care for their children, or advance their edu cations and careers. Gender-based violence is thus both a cause and a consequence of dis crimination against women.12
The gaps in responses to gender-based violence In the course of the tour people spoke of a number of key areas where local, state and federal responses to violence against women could be improved, as outlined in detail in the Commission’s report. One common issue was the lack of sufficiently comprehensive collated and disaggregated data.13 This impacted the effectiveness of prevention and crisis response programs, and created a lack of understanding about whether the increase in reports of domestic violence indicated higher prevalence rates or a greater awareness of the issue.
Another common gap was the lack of adequate access to justice and services. Without suffi cient funding and resources, some police, courts and legal aid systems are struggling to manage their caseloads. This can result in long waiting times at court and delays in hearings.14 The lack of culturally appropriate legal services greatly affects their utilisation by Aboriginal and Torres Strait Islander women and culturally and linguistically diverse women.15 A third issue that was raised was the lack of culturally appropriate services for victims particularly in rural areas. The level of unmet demand in refuges and shelters for example, results in one in two female victims of violence being denied aid.16 Furthermore, refuges are often inaccessible to women with disability.17 The ‘mainstreaming’ or one-size-fits-all approach to service provision leaves some vulnerable groups under-protected and under-served. When different areas of vulnerability intersect, for example if an Aboriginal or Torres Strait Islander victim of violence also lives with a disability, some services programs might not be able to meet all their needs. Access to safe and secure housing was another common concern, especially in Aboriginal and Torres Strait Islander communities. A majority of homeless women and children live on the streets in an effort to escape domestic violence, or continue to live in violent households to avoid homelessness. In a census taken in 2006, the NSW government identified that 20 per cent of those seeking housing assistance were women? escaping domestic and family violence; the closest second motivation being the breakdown of a family or relationship at 12 per cent.18
The future for women in Australia The Rapporteur’s trip shone an international spotlight on violence against women in Aus tralia. This account of her tour highlights only a few of the issues that were raised during the ten days of travelling. From what I observed, her meetings and consultations both inspired and challenged those working on the ground, offering them an opportunity to share their incredible work and acknowledge and discuss Court of Conscience | 9
the shortcomings. Following the tour, the Com mission sent a survey to the participants of the roundtables and meetings Ms. Manjoo atten ded. The results confirmed an overall sense that the Rapporteur’s visit had provided greater visibility of the issue of gender-based violence, greater visibility of the needs of marginalised women and greater visibility of efforts to combat violence. It also provided a greater understanding of how inter national law and institutions are being utilised to combat gender-based violence globally.
The Commission’s report is publically available on their website at www.humanrights.gov.au. The tour will also inform Ms. Manjoo’s future thematic reports to the Human Rights Council. The Human Rights Council’s special procedures process will continue to provide victims and advocates seeking redress a forum to submit complaints, which the Special Rapporteur can decide to investigate.19 We must use all the tools available to us to ensure Australian women have as equal a chance of enjoying their basic human rights as men. Free from the fear of violence.
Andrea Durbach
Behind closed doors:
ReferenceS 10 The National Council to Reduce Violence Against
Discrimination Against Women (CEDAW), CEDAW
Women and their Children, The Commonwealth
General Recommendations Nos. 19 and 20,
Department of Families, Housing, Community
contained in Document A/47/38), 1992, A/47/38
Services and Indigenous Affairs, The costs of
(adopted at the Eleventh Session, 1992).
violence against women and children (2009) http://
2 Australian Human Rights Commission, Report of
www.fahcsia.gov.au/our-responsibilities/women/
the UN Special Rapporteur on Violence Against
publications-articles/reducing-violence/national-
Women’s Study Tour, April 2012 (2012).
plan-to-reduce-violence-against-women-and-their-
3 Ibid.
children/economic-cost-of-violence-against-
4 World Health Organisation, World report on
women-and-their-children>, quoted in Australian
violence and health (2002) http://whqlibdoc.who.
Human Rights Commission, Report of the UN
int/hq/2002/9241545615.pdf.
Special Rapporteur on Violence Against Women’s
5 Australian Bureau of Statistics, Personal Safety
Study Tour, April 2012, 12.
Survey Australia 2005 (Reissue), Catalogue No.
11 Above n 2, 17.
4906.0 (2006), cited in Australian Human Rights
12 Above n 2, 10.
Commission, Report of the UN Special Rapporteur
13 Ibid,15.
on Violence Against Women’s Study Tour, April
14 Ibid, 27.
2012.
15 Ibid,30.
6 Ibid.
16 Ibid, 26.
7 Ibid.
17 Ibid, 37.
8 Chris Cunneen, ‘Preventing Violence against
18 NSW Government, A Way Home: Reducing
Indigenous Women through Programs which
Homelessness in NSW, NSW Homelessness Action
Target Men’ (2002) 25(1) University of New South
Plan 2009-2014 (2009) http://www.housing.nsw.
Wales Law Journal 242, quoted in Australian
gov.au/NR/rdonlyres/070B5937-55E1-4948-A98F-
Human Rights Commission, Report of the UN Special Rapporteur on Violence Against Women’s Study Tour, April 2012. 9 NSW Bureau of Crime Statistics and Research, “Criminal Court Statistics” (2012) http://www. bocsar.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/ pages/bocsar_court_stats.
10 | Court of Conscience
‘ outing’ the private AND public cost of violence against women
ABB9774EB420/0/ActionPlan2.pdf. 19 Office of the High Commissioner for Human Rights, “Individual Complaints” http://www.ohchr.org/EN/ Issues/Women/SRWomen/Pages/Complaints. aspx.
Michelle Montgomery 2009
1 United Nations Committee on the Elimination of
Court of Conscience | 11
Gender-based violence… is sustained by a culture of silence and denial of the seriousness of the health consequences of abuse.1 The most pressing and pervasive global human rights issue In February 2012, American writer, playwright and human rights activist, Eve Ensler delivered a powerful message to a packed Sydney Theatre. At the end of her Australian Human Rights Centre Annual Lecture, Until the Violence Stops, Ensler called on one billion women and men around the world “to rise, to strike, to walk out of their jobs, their homes, their schools and dance until the violence stops.” Her call fol lowed a statement of shocking fact: Today one out of three women in the world – more than one billion women – will be raped or beaten. As economies collapse and the 99% struggle with less and less, as global warming increases, and fires, floods (and) droughts abound, the violence against women and girls increases. They become targets. They become commodities, sold in many places for less than (the price of) a cell phone. Two months later, I was to witness the stark depiction of the extent to which the experience of one in three women in Australia2 corresponds to Eve Ensler’s unsettling statistic. In April, in my role as part-time Deputy Sex Discrimination Commissioner3, I accompanied the United Nations (UN)UN Special Rapporteur on Vio lence against Women, Rashida Manjoo on a study tour across Australia.4 We travelled across six cities and towns in 11 days partici pating in government, service provider and NGO roundtables, meetings and site visits. We listened to women from Aboriginal and Torres Strait Islander communities, to migrant and refugee women, to women with disabilities, to students5 and workers, to mothers and daugh ters, and to men who work in various ways to address and prevent violence against women. What we witnessed and heard across Australia underscored Eve Ensler’s reckoning: domestic violence against women is pervasive and in 12 | Court of Conscience
––––––––– Today one out of three women in the world – more than one billion women – will be raped or beaten.
creasing, assuming a regrettable lead as the most pressing human rights issue globally.
Violence against women a public health pandemic Rashida Manjoo travels the world hearing and analysing testimony from women who are survi vors of violence. She argues that if we were to arti cu late violence against women in health terms it would undoubtedly be regarded as a global pandemic. This assessment by the UN Special Rapporteur on Violence against Women is not new, but little has changed since the first results emerged from the 2005 World Health Organisation (WHO) multi-country study which gave international prominence to the relationship between violence against women and the in creasing, often devastating, health burden borne by survivors across their lifetime.6 As investment strategies to prevent violence struggle to attract adequate and appropriate resources, research projects undertaken across the world indicate that violence against women is not only increasing, but that the violence is, in the words of Rahida Manjoo, “becoming more violent.” The WHO study acutely demonstrated that a range of detrimental public health consequen ces flow from this violence: from death (homicide) as a direct outcome of gender-related violence, to illness (mental and physical), injury (in some instances leading to a long-term disability) and
disease. Additionally, survivors of violence may tend towards substance and alcohol abuse and smoking, which can further compromise their health and add to the public health burden. In a study to assess the health impact of domestic violence against women published by VicHealth in 20047, it was found that domestic violence contributed nine per cent to the total disease burden of women aged 15 to 44 years in Victoria, making it the leading contributor to illness, disability and premature death for this group.8 The VicHealth statistic positioned domestic vio lence as a greater risk to women’s health than commonly known factors such as tobacco use, high blood pressure and obesity. Despite the high levels of prevalence and the increasing public health consequences of do mes tic violence against women, it remains inade quately and inappropriately addressed within the health system, with significant impact on survivors’ ability and capacity to function in social, familial and workplace environments. While the visible physical manifestations of vio lence are perhaps more ‘easily’ redressed, the invisible cumulative mental health impact of violence against women can be debilitating. These often devastating impacts can limit the overall functionality of survivors generally, and workplace attendance and performance of survivor employees specifically. A study con ducted by a number of University of New South Wales (UNSW) researchers in 2011 examined the correlation between gender-based violence (primarily domestic or intimate partner violence) and mental health. The study found “a striking and concerning association between exposure to one or more forms of gender-based violence and mental disorder(s),” ranging from “anxiety, mood disorders, substance abuse and, posttraumatic stress disorder.”9 This “striking and concerning association”10 is often hard to detect given that women, who primarily suffer domestic violence, are reluctant to discuss conduct that is considered to be confined to the private sphere
Public health and economic consequences of non-disclosure In my discussions with women victims and survivors of domestic violence and with
experts working on domestic violence issues across Australia, it was apparent that many women are reluctant to disclose or discuss their experiences of violence for a range of social, cultural and psychological reasons. Consequently, the mental health dimension of the violence – which can manifest as an endur ing impairment, dysfunction or disability – may be misdiagnosed or not diagnosed at all, and victims and survivors of violence may not be appropriately addressed within existing “gen der-based violence services (that) have tended to be established separately from men tal health services and vice versa,”11 limiting their access to the full range of “mental health interventions.”12 The reticence (and often stigma) attached to disclosure of violence has potentially detri mental consequences for victim or survivor employees. Two-thirds of women affected by domestic and family violence in Australia are in some form of paid employment (an estimated 800,000 women or close to one in six female workers).13 A survey undertaken by UNSW’s Australian Domestic and Family Violence Clear inghouse in 201114 found that domestic violence contributed to decreased work func tionality and performance, uneven quality of work and delayed production, interrupted work atten dance and absence from work to attend court hearings and counselling and medical services. These factors put survivors of violence at risk of demotion or dismissal from their work, part icularly where employers have no insight into or little understanding of the underlying reasons for reduced employee performance. For these workers, termination of a salary means a loss of economic independence and long-term economic security which can often undermine the survivors’ capacity to leave violent relat ionships. Additionally, the cost to the Australian economy of failing to address the impact of domestic violence in the workplace – “absen teeism and turnover, illness and accidents, disability or even death”15 – has been estimated to reach $15.6 billion by 2021/2022, with the cost of productivity losses expected to rise to $609 million by 2022.16 Court of Conscience | 13
Making disclosure safe Although issues of privacy, shame, stigma, cultural justification and fear of dismissal are compelling reasons that prevent women from disclosing violence, their failure to disclose the impact of the violence can exacerbate their harm with significant long-term public health and economic consequences. The research undertaken by Dr Susan Rees and others at UNSW’s School of Psychiatry, recognises that services need to be expanded and adapted to make survivors of gender-based violence (GBV) feel safe to disclose their harm and utilise treatment programs which in addition to treating immediate needs, may reduce repeated or long-term exposure to risk. The study highlights that women who have experienced violence may find it difficult to attend “mixed-gender services” and recommends “personnel training in strategies to engage and interview women in a gender-sensitive manner, to build trust, and to ensure safety, privacy, and confidentiality in all interactions.”17 In addition, the authors of the study recommend that “existing treatment pro grams… be modified to incorporate strategies that explicitly focus on (the mental health dimen sion of) GBV.” These strategies and treatment programs might involve researchers, experts and practitioners “from an array of disciplines… (such as) social science, human rights, public health, and mental health”18, providing a multi dimensional service or framework to address the range of survivor needs. If disclosure of the violence is facilitated, the prospects for appropriate treatment and pre ven tion strategies are increased. With this is mind, the Australian Domestic Violence Clear ing house (UNSW) and the Australian Human Rights Commission have argued for a multifaceted workplace strategy to address the needs of women whose working lives have been, and continue to be, undermined by domestic and family violence19. This approach will allow women to disclose violent conduct and consequences to employers without fear of reprisal (e.g. dismissal) and tp retain employment and an income that may assist them and their children to leave a violent relationship and environment. Once women feel safe to reveal 14 | Court of Conscience
violence, disclosure can enable access to flexi ble workplace arrangements which accom modate their needs, and to essential health and counselling services, shelters and refuges, po lice protection and legal advice.
Domestic violence as a ground of discrimination A significant component of this workplace strategy has been to request the Common wealth Government, as part of its Consolidation of Commonwealth Anti-Discrimination Laws Project (which will seek to amalgamate existing Commonwealth anti-discriminatory law into a single Act and improve protections, where appropriate), to consider the introduction of a separate ground of discrimination based on domestic and family violence.20 Discrimination in the workplace against victims and survivors of domestic and family violence often takes the form of a demotion or dismissal where a worker’s performance declines or ma terially alters in the absence of any obvious explanation.21 An employer may also terminate employment where a victim or survivor of domestic violence is harassed or harmed by an abusive partner who visits a workplace or makes threatening telephone calls or sends abusive emails. This discriminatory treatment further undermines work performance and productivity and “compound(s) the already significant harm of the original acts of violence.”22 A strategy that protects victims and survivors of violence from workplace discrimination and provides flexible work arrangements (via the provision of entitlements in enterprise agree ments) for them to attend court hearings (to secure protection orders), counselling services and refuges, can enhance safety, potentially diminish exposure to risk, and increase work place productivity. Based on the work of the Clearinghouse and VicHealth and on discussions with mental health experts, trade union representatives and organi sations such as the White Ribbon Foundation and Australia CEO Challenge, the Australian Hu man Rights Commission has argued that the existence of a new ground of protection will:
i provide significant redress for workers; ii play an important educative role by increasing employer awareness about the nature and impact of domestic and family violence; and iii foster an environment in which victims and survivors can feel safe to disclose violent situations with a view to securing appro priate help and resolution. Introducing domestic and family violence as a separate ground of discrimination—“giving this insidious form of violence a place within Aus tralia’s legal framework”23 – will enable the important first step of identifying and naming a pressing social and economic problem. It will also give legal acknowledgment to a wrong that undermines individual rights and com munity wellbeing and open up appropriate avenues for redress and prevention.
Secretary-General, Kofi Anan, adds a further reason in support of legislative action: “ In calling for action and redress for these violations ... women (have) exposed the role of violence against women as a form of discrimination …This process (has) led to the identification of many different forms and manifestations of violence against women… drawing them out of the private domain to public attention and the arena of State (and public sector) accountability.”28
ReferenceS 1 United Nations Population Fund, Gender Equality – Ending Widespread Violence Against Women http:// www.unfpa.org/gender/violence.htm 2 In 2005, the Australian Bureau of Statistics estimated that one in three women over the age of 15 years had experienced violence. Over 40 per cent of these women – approximately 1.2 million women – have experienced that violence at the hands of a current or former partner.
Conclusion
Australian Bureau of Statistics, ‘Personal Safety,
It is well established under international human rights law, that domestic and family violence is a violation of human rights. In General Recom mendations No. 1924 and No. 2825, the CEDAW Committee states that gender-based violence against women is discrimination on the basis of sex and gender under Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).26 Article 2 of CEDAW obliges States Parties to enact legislation that prohibits discrimination in all fields of women’s lives and throughout their life span. Article 2 further imposes on States Parties a due dili gence obligation to prevent, investigate, prose cute and punish acts of gender-based violence and discrimination. In practice, the CEDAW Committee has recognised that violence against women is both a cause and consequence of discrimination.
Australia, 2005 (Reissue)’, (Catalogue No. 4906.0, ABS, 2006). 3 I was appointed part-time Deputy Sex Discrimination Commissioner at the Australian Human Rights Commission from May 2011 – July 2012. 4 see companion article by Lucia Noyce 5 Early on in my role as Deputy Sex Discrimination Commissioner, I met with the authors of a report published by the National Union of Students, entitled Talk About It Report A National Survey on Women’s Student’s Safety. The survey was developed in response to a series of incidents at NSW and ACT university residential colleges and asked over 1500 women about their experiences of sexual violence, the availability of appropriate responses, information and services and their perceptions of campus safety. Although the methodology of the survey has been queried, the statistics nonetheless highlighted a disturbing reality - that women on universities campuses are not immune to the threat and impact of violence. The survey results found that 1 in 10 respondents had experienced
Given that violence against women is already recognised as discrimination under international law, the UN Special Rapporteur, Rashida Man joo, has observed that a corresponding enactment in domestic legislation would be a progressive and constructive contribution by Australia in the global fight to prevent and address violence against women.27 Former UN
sexual violence while at university and more than 60% of women felt unsafe whilst on campus at night. 6 Claudia Garcia-Moreno et al., ‘WHO multi-country study on women’s health and domestic violence against women: initial results on prevalence, health outcomes and women’s responses’, (Research Report, World Health Organisation, 2005) http://whqlibdoc.who.int/ publications/2005/924159358X_eng.pdf
Court of Conscience | 15
that the violence had continued in the workplace, including
intimate partner violence than to violence in any other
through abusive phone calls and emails and presenting at
context and are overwhelmingly more likely than are
the workplace of the victim; 16% of victims and survivors
men to be the victims of this form of violence and to
reporting being distracted, tired or unwell; and 10%
suffer its health consequences.” VicHealth, ‘The Health
needed to take time off work. Ludo McFerran, ‘Safe at
Costs of Violence: Measuring the burden of disease
Home, Safe at Work? National Domestic Violence and the
caused by intimate partner violence, a summary of
Workplace Survey’, ,(Survey Report, Centre for Gender
findings’, (Research Study, VicHealth, 2004) 10.
Related Violence Studies and Micromex Research, 2011)
8 Ibid, 8. 9 ABC Radio National, ‘The effect of gender-based violence on women and their mental health’, The Health Report, 29
http://www.adfvc.unsw.edu.au/PDF%20files/Domestic_ violence_and_work_survey_report_2011.pdf to the Attorney-General’s Department, Consolidation of
radionational/programs/healthreport/the-effect-of-
Commonwealth Discrimination law - domestic and family
gender-based-violence-on-women-and/2934722
violence, 23 January 2012 http://www.hreoc.gov.au/legal/
11 ?? 12 Susan Rees et al., ‘Lifetime Prevalence of Gender-Based
submissions/2012/20120123_consolidation.html An exposure draft of the legislation is due mid-2012. 21 For example, employers will take discriminatory action
Violence in Women and the Relationship with Mental
against an employee without knowing that domestic
Disorders and Psychological Function’ (2011) 306(5)
violence was, for example, the reason they were
Journal of the American Medical Association 513, 518. 13 Australian Bureau of Statistics, ‘Personal Safety, Australia,
consistently late for work. 22 Andrea Durbach, ‘Domestic violence discrimination and
2005 (Reissue)’, (Catalogue No. 4906.0, ABS, 2006).
the consolidation of Commonwealth anti-discrimination
14 Ludo McFerran, ‘Safe at Home, Safe at Work? National
laws’ (Paper presented to Safe at Home, Safe at Work
Domestic Violence and the Workplace Survey’, ,(Survey
Conference, Melbourne, 5 December 2011) <http://
Report, Centre for Gender Related Violence Studies and
www.hreoc.gov.au/about/media/speeches/sex_
Micromex Research, 2011) http://www.adfvc.unsw.edu.
23 Ibid.
report_2011.pdf
24 General Recommendation No 19 of the Committee on the Elimination of Discrimination against Women, 11th
Violence in the World of Work: Overview and Selected
session, 1992 – Violence against Women, at http://www.
Bibliography’, (Working Paper 3/2011, International
un.org/womenwatch/daw/cedaw/recommendations/
Labour Office, 2011) 13. 16 National Council to Reduce Violence against Women
recomm.htm#recom19 25 General Recommendation No 28 of the Committee on
and their Children, ‘The Cost of Violence Against
the Elimination of Discrimination against Women, 47th
Women and Their Children’, (Economic Report, VAWC,
session, 2010 - The Core Obligations of States Parties
2009), 4 and 45 http://www.ilc.unsw.edu.au/sites/ilc.
under Article 2 of CEDAW, http://daccess-dds-ny.un.
unsw.edu.au/files/mdocs/VAWC_Economic_
org/doc/UNDOC/GEN/G10/472/60/PDF/G1047260.
Report-2009.pdf 17 Susan Rees et al., ‘Lifetime Prevalence of Gender-Based Violence in Women and the Relationship with Mental Disorders and Psychological Function’ (2011) 306(5) Journal of the American Medical Association 513, 518.
pdf?OpenElement 26 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 18 December, 1979 at http://www2.ohchr.org/english/law/cedaw.htm 27 Ms Manjoo’s remark was made in an address to a func
18 Ibid.
tion hosted by UN Women Australia in Sydney on 10
19 Although domestic and family violence affects the working
April, 2012. Similar legislation has been enacted in the
lives of both parties, it is victims and survivors (primarily
some American states eg New York, Illinois, and in the
women), rather than perpetrators (primarily men), who are typically discriminated against in the workplace. Nearly
Philippines. 28 UN Secretary-General, In-Depth Study on All Forms of
half (48%) of respondents to the 2011 National Domestic
Violence against Women, UN Doc A/61/122/Add.1 (6 July
Violence and the Workplace Survey, reported that the
2006), 23.
violence had affected their ability to get to work; 19% said
16 | Court of Conscience
I
f you have heard of Pune India then it might be because it is home to the Osho International Meditation Resort, founded by Osho (born Chandra Mohan Jain) who was an Indian mystic, guru, and spiritual teacher who garnered an international following of those searching for a dose of eastern spiritualism, yoga and enlightenment. Or it might be because of the local enthusiasm for cricket and the presence of the international Jawaharlal Nehru Stadium full to capacity whenever a match is staged.
discrim/2011/20111205_domestic_violence.html
au/PDF%20files/Domestic_violence_and_work_survey_ 15 Adrienne Cruz & Sabine Klinger, ‘Gender-Based
TEACHING FEMINIST LEGAL THEORY IN AN INDIAN LAW COLLEGE
20 Human Rights Commission, Supplementary Submission
August, 2011 (Dr Susan Rees), http://www.abc.net.au/
10 ibid
Christine Forster
image: http://www.flickr.com/photos/pnp/1595550557/
7 The study notes that “women are more vulnerable to
Pune, named Poona by the British, is also a bustling university town. It is located 147 kilometres inland from Mumbai, is the eighth largest metropolis in India, the second largest in the state of Maharashtra after Mumbai, and the largest city in the Western Ghats with a population of approximately 3 million. In 2006, upon the recommendation of a colleague, I travelled to Pune to spend 5 months of my study leave at the Indian Law Society (ILS) Law College, The ILS Law College was founded by the Indian Law Society in 1924 and has since then established itself as one of the top law institutes in India. It has approximately 3,000 students, only law is taught, and the buildings are grandly located on spacious, rambling colonialstyle grounds. The College invited me to teach feminist legal theory during my time there and since 2006 I have travelled back Pune to teach the course 5 times. The course last ran in January of 2010 and will run next in November of 2012.
Court of Conscience | 17
When visiting Pune I often stay in an Indian household, sharing with another staff member at the College. She has five people who work for her including a cook, a cleaner, an odd jobs person, a gardener and a driver. My western discomfort at being party to this arrangement coupled with the knowledge of the role of caste in the employment of home help in India is balanced by the realisation that she is supporting the livelihoods of five families, including such things as contributing financially to the employees’ children’s (expensive) marriage celebrations. Over the years I have developed a taste for Indian sweets which has resulted in Indubai the cook generously preparing on each visit for me two dozen ladoos (a very sweet sweetmeat made with chickpeas, ghee, nutmeg, cloves, raisins, milk and coconut) to bring back to Australia. Not having the heart to tell her that fresh milk products cannot pass through our strict quarantine I eat as many as possible en route to the airport and distribute the rest to pavement dwellers. In India, an estimated 16 million people live on the pavements, fashioning shelters from cloth, corrugated iron, cardboard, wood, and plastic. Each morning I walk for twenty minutes to get to the College and each day there is a new adventure en route - an elephant which a young boy rides daily along the road, tribal kids living on a construction site with their parents who move from site to site and work 6am until dusk for 100 rupees per day ($2), cows and bullocks wandering the streets amongst the smartly dressed young people 18 | Court of Conscience
with mobile phones, spirited conversations with the fruit seller near her makeshift stand, which neither of us understand – she in her local language, Marathi and me in my mixture of ‘Singlish’, a combination of not song, but sign and English. Despite our conversational challenges we still manage to effect a transaction each morning which ensures my supply of figs and mangoes for the rest of the day.
––––––––– The students use
street drama to act out a range of scenarios in which basic principles of law relevant to the lives of rural women are portrayed in an initiative aimed at addressing the 33% rate illiteracy amongst rural women across the state.
http://www.flickr.com/photos/etrenard/564027421/in/photostream/
I chose the ILS Law College for my sabbatical in part because of its high percentage of women staff, including a female Principal and Vice-Principal, unusual in India, and in part because of the legal literacy “human rights” camps it runs for women in the rural villages of Maharashtra. The students use street drama to act out a range of scenarios in which basic principles of law relevant to the lives of rural women are portrayed in an initiative aimed at addressing the 33% rate illiteracy amongst rural women across the state.
The first time I taught feminist legal theory at the ILS College in 2006 the course had an enrolment of 30 students with equal numbers of female and male participants. The last time the course was taught in 2010 the enrolment had jumped to 90 students. Preparing the course materials for the first time I contemplated how much of the feminist legal theory course which I had previously taught in the UNSW law school was appropriate in the Indian context. Should I include, for example, Martha Fineman’s work on dependencies and her contention that the state should dispense with marriage as a legal institution leading to rights and obligations replacing it instead with a model in which dependency forms the basis from which relevant rights and obli gations flow (such as property division, spousal maintenance and custody) making any state concern with sexual intimacy (and marriage) redundant?1 Would such a piece be too challenging in a country where marriage is considered to be the “cornerstone” of society, where some 97% of the population 18 years or over are or have been married,2 where the overwhelming majority of marriages are arranged3 and where only 1.1% of marriages result in a divorce.4 Should I include the debate within the LGBT community on the merits of same-sex inclusion into legal definitions of family? On the one hand some members of the LGBT community demand to be included on the basis that the historic and continuing exclusion of same-sex relationships from many of the legal protections afforded to heterosexual relationships is discriminatory and violates equality rights. On the other hand other members of the LGBT community argue that the institution of family is heavily implicated in the oppression of women (in their sexuality, their reproduction, and in the division of labour) and engagement with it merely strengthens it as an exclusionary institution. Additionally, presenting same-sex relationships as the “same” as heterosexual relationships obscures the diversity of relationships within the LGBT community and negates their
“subversive” nature.5 In India same-sex relationships are generally considered a taboo subject by both Indian civil society and the government. India’s transgender community, the “hijra”, are one of the most disempowered groups in Indian society. They face extreme discrimination in health, housing, education, employment, immigration, law and violence against hijras, especially hijra sex workers, is often brutal, occurring in public spaces, police stations, prisons, and in their homes.6 I chose, after deliberation, to include Fineman and to exclude the debate on same-sex rights within law. Arriving at the College, I am usually met by the resident family of dogs who pepper the landscape both in and out of the classroom. “More dogs than students attending my lectures” an Indian colleague quipped. The first day in the classroom came with the realisation that I had a lot to learn about India and teaching in an Indian law school. The students were enthusiastic, the readings completed, and discussion robust and vibrant. My style of teaching was unusual for the students, who were more used to a lecture format, but facilitation of class discussion was easy, the students all wanted to contribute. One student asked after class why I hadn’t included samesex issues in the course, and caste and religion were central to every discussion. Both impacted on everyone in a variety of ways. Some students had discarded their family name because it revealed their caste, one calling himself simply ‘Kranti’ which translates to ‘revolution.’ Half way through the first class, held in a large open room with fans and minimal facilities there was a sudden silence, the lights went out and the fans stopped. I stopped also but the students kept writing and looking at me expectantly. The power they explained shuts off every day for three hours. In some districts of Maharashtra, there are four to twelve hours of daily, scheduled power outages. Oh! The College has a generator but most days it doesn’t work so we continued in the dark and the oppressive heat. The next day our classroom was double booked so we went to the only available space for the class (the roof of the College) and the class Court of Conscience | 19
I have taught the course five times since its inception in 2006. Now a number of classes are taken by local Indian speakers and the course has dramatically changed to include topics much more relevant to the student’s lives. Key topics include, first, the feminisation of poverty defined as a process through which a greater burden of poverty is borne by women. The topic is very relevant in India where the largest percentage of the worldwide poor live (40% of 1.3 billion). While Indian women and men often live together in poverty, their lives differ dramatically. Women are paid less than men for the same work, have less access than men to credit, limited access to productive resources such as irrigation, water, fertilizers and technologies, unequal access to family resources and land and unequal access to essentials such as food and health care, and thus, suffer disproportionately from malnutrition, morbidity, and mortality.7 A second topic is child marriage where, according to UNICEF, 47% of Indian girls are married by 18 years of age, and 18% are married by 15 years of age. These marriages are often performed without the consent of the girls involved in the marriage and although Indian law has made child marriage illegal, it is still widely practiced throughout India.8 A third topic is the devadasi system, a religious tradition in which girls are “married” and dedicated to a deity or to a temple - in short a life of unpaid sex work in the name of religion, which continues in Maharashtra despite being made illegal in 2005.9 Fourth, sex selective abortions, the practice of terminating a pregnancy based upon the predicted sex of the fetus are common in India despite legal restrictions making it illegal to use ultrasounds to determine the sex of a fetus.10 The laws are rarely enforced and private medical practices are largely unregulated with the result that the sex ratio in Maharashtra languishes at 889 girls to 1000 20 | Court of Conscience
with their husband’s family after marriage. In addition, parents of daughters often still pay a dowry, despite the practice being illegal since 1961.11
boys. In India, sons continue to be preferred for the economic support they provide for the household, particularly in their parents’ old age. Daughters are not seen as a source of financial support, especially since typically they leave the parental home to live
–––––––– – A third topic is
the devadasi system, a religious tradition in which girls are “married” and dedicated to a deity or to a temple – in short a life of unpaid sex work in the name of religion, which continues in Maharashtra despite being made illegal in 2005.9
http://www.flickr.com/photos/etrenard/564107683/
proceeded in the outdoor heat without any teaching facilities or fans.
Finally, the topic of same-sex relationships now has a solid place in the course including discussion of the much heralded case of 2009 where the Delhi High Court struck down section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution.12 The ruling overturned a 148-year-old colonial law which described same-sex relations as an “unnatural offence” and through which homosexual acts were punishable by a 10-year prison sentence. Throughout all class topics, caste and religion are central. Religion (in the form of Hinduism, Islam, Christianity, Sikhism, Buddhism and Jainism) is central to Indian life. Although discrimination on the basis of caste – a system of social stratification in the Hindu majority with five different levels (Brahmin – those engaged in scriptural education and teaching, Kshatriya – those who work in public service, including administration, maintenance of law and order, and defence, Vaishya – those who engage in commercial activity, Shudra – those who work as semi-skilled and unskilled laborers and finally the Dalits, formerly known as the untouchables) – was made unconstitutional in 1947, caste still operates in all aspects of Indian society.13 My experiences in India have been life changing and have caused me to reflect on legal education generally. A major difference I have found between the Indian Law College and the law school culture in Australia is the level of engagement with community. While initiatives such as community legal centres and clinical legal education programs try to bridge this gap in Australia – I was particularly interested in the Indian approach. On one of my visits to the College I was invited to travel with 3 other staff and 40 students to participate in a 5 day legal literacy camp in rural Maharashtra. We stayed at a girls’ school
run by an NGO which houses nearly 60 girls aged from 5 to 18 who live at the school, returning home only for brief holidays. In many cases the school pays the parents a stipend to send the girls to the school recompensing them for the lost wages that the girls could earn in the fields. We were accommodated in basic rooms which surrounded a circular courtyard. Each morning we awoke to a roaring fire in the courtyard lit and tended by the girls who were heating up water for an early morning spicy cup of masala chai. Breakfast and all other meals consisted of daal (lentils) and chapattis (bread) which we ate cross legged in a circle. Facilities were minimal and school resources are non-existent. During the 5-day visit over 100 women arrived on foot from villages in a 20 mile radius. The students used street drama to act out a range of scenarios relevant to the lives of the village women present which showcased laws relating to child marriage, dowry, maintenance, bigamy, and domestic violence. The street drama is part of a much broader project run by the College where students regularly perform in villages around Pune, informing locals of their legal rights. Students also regularly visit and engage with orphanages, old-age homes, jails and other institutions. In particular the College has an ongoing relationship with Ekalavya, a school for the children of sex-workers, located close to Pune’s “red light” district. The school is located inside a rambling three story building where the 100 children, aged from 3 to 18, live, eat and study in basic conditions with the support of volunteers and community. Teaching in India and spending time at the ILS Law College has impacted on my teaching in the Australian context. It has broadened my horizons, taught me patience, and chal lenged my assumptions. I have discovered that despite the benefits of high tech facilities, a large and comprehensive library with contem porary electronic resources, and comfortable air conditioned classrooms and offices, learning can occur in any setting with minimal resources, with dogs wandering in and out of the classroom, or with a new adventure as your teacher. Court of Conscience | 21
References
Julia Erin Petinos
1 Martha Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies (Routledge: 1996); The Autonomy Myth: A Theory of Dependency (The New Press, 2004); The Vulnerable Subject: Anchoring Equality in the Human Condition (Princeton University Press, 2011). 2 B Gupta, Do Cultural Values Override Incentives? Sex Ratio, Caste, and Marriage in India (2011) Working Paper. Department of Economics, Warwick, Coventry. Subcaste” (2008) 14 Journal of the Royal Anthropological Institute, 736 – 754. 4 See online http://www.divorcerate.org/divorce-rate-in-india.html 5 E Stein, “Marriage or Liberation?: Reflections on Two Strategies in the Struggle for Lesbian and Gay Rights and Relationship Recognition” (2009) 61 Rutgers Law Review 567. 6 A Patel, “India’s Hijras: The Case for Transgender Rights” (2010) 42 George Washington International Law Review 835. 7 R Pande, “Gender, Poverty and Globalization in India” (2007) 50 Development 134. 8 Prohibition of Child Marriage Act, 2006 (India). See J Sagade, Child Marriage in India: Socio-Legal and Human Rights Dimensions (Oxford University Press: 2005). 9 Devdasi System (Abolition) Act 2005 (Maharashtra). 10 Preconception and Prenatal Diagnostic Techniques Act 1994. 11 Dowry Prohibition Act 1961. 12 Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court 2009).
http://www.flickr.com/photos/rajputro/3031905840
3 C Fuller & H Narasimhan, “Companionate Marriage in India: The Changing Marriage System in a Middle-Class Brahman
13 A Zacharias, “Caste Stratification and Wealth Inequality in India” (2011) 39(10) World Development 1820.
On Domestic violence
O
dds are you, or someone you know, will undoubtedly fall victim to domestic violence at some point. The high rate of such a horrific crime requires a greater level of public attention to ensure easier access to services and infor mation for victims is made available. Currently, access to the legal system appears to adequately support the diverse Australian population. Initiatives such as Legal Aid have been established to help disadvantaged groups access the legal system and grasp a more compre hensive understanding of the law. While access issues are continually revised and improved, a major concern that con tinues in society today is the attitude towards certain crimes and the stigma that accompanies these crimes. This paper will explore the issues surrounding access to the legal system for a particular group of disadvantaged peoples: the victims of domestic violence.
22 | Court of Conscience
Court of Conscience | 23
http://www.flickr.com/photos/emarquetti/109161593
–––––––– … the police are
unlikely to act as efficiently as they would with an average and straightforward assault case; the stigma remains: ‘it’s a family matter.’ If Max punches Jack in the face, all else being equal, the police will be called and Max arrested for assault. When appearing in court the case will be a relatively straight forward one; once the main elements of the crime are proven, a guilty verdict is likely to prevail. Presuming this scenario falls into the more serious end of the spectrum, Max is likely to face time in prison. Now, if Max punches his wife Josephine, all else being equal, the outcome is likely to be very different. Firstly, Josephine is unlikely to report the crime at all. The matter will probably go no further than the four walls of their family home. If she does report the crime, the police are unlikely to act as efficiently as they would with an average and straightforward assault case; the stigma remains: ‘it’s a family matter.’ At best, Max will be prosecuted for assault under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘DPV Act’). This simple scenario poses serious concerns for not only victims of domestic violence, but the Australian legal system at large. Why should assault be any different based on gender and the relationship of the victim to perpetrator? Access to the legal system centres around the ability of an individual to source legal information, legal representation as well as understanding 24 | Court of Conscience
the language of the law itself. The latter poses a great barrier for most people simply due to the sophistication of the language used. In the context of domestic violence, the disparity between the language used in the DPV Act and that of what the average person would explain domestic violence to be, is enormous. To simply define the term domestic violence, three separate terms have to be individually defined. There is also reference to different statutes in order to define domestic violence.1 For individuals trying to access the legal system, the language of the law poses yet another barrier. Once sourced, legal information is often unreadable and therefore rendered unusable. This barrier is only intensified when the victim is placed in an abusive relationship. Imagine Josephine – hurt, alone, and confused – trying to decipher the complex words of the statute(s) and what they mean for her situation.2 While it is necessary to have legislation written in a manner that provides clear guidance to the courts, it is equally necessary in my opinion to have laws that the average person can understand. While it would be utopian to believe that open access to legal language is possible, in certain sit uations, such as domestic violence, I believe there is a greater sense of urgency to find a solution to the problem of incompressible legal language. One way to overcome this would be to have a separate, reader-friendly version of
the statute that can be understood by everyone. For legislation such as this, where the subjects are in a position of particular terror and danger, understanding their rights would create a greater sense of security for the victim and encourage them to firstly report the crime, and secondly have faith in the legal system and its ability to uphold justice. This is the first step that needs to be taken in order to create equal access to the legal system for victims. To encourage victims to engage with the legal system, it is necessary to have a legal system that can be understood by these individuals. Mere accessibility from the standpoint of sourcing material is simply not enough to invoke change and create an environment where victims feel comfortable in reporting such crimes; comfortable from a safety point, as well as feeling comfortable with the ability of the legal system, to ensure justice prevails.
face greater barriers to seeking justice due to their inability to access the legal system. Julia Wentz in a recent article discussed the advantages the internet provides as a platform to access the legal system and the opportunities this can provide for victims of crime.5 The disjunction between disadvantaged groups and the rest of society is never more obvious than in this context. As discussed previously, the areas where domestic violence is most prominent in New South Wales are areas where internet access would be scarce, if at all. Wentz argues that ‘access to information is the linchpin for achieving legal justice’; equally, very limited access often results in injustice. This is the current state of affairs for the majority of domestic violence victims. An inability to easily access legal information, coupled with high rates of domestic violence, creates a real problem for these victims.
Research conducted by the Bureau of Crime Statistics and Research (BOCSAR) in 2004 found that the top three incidents per head of domestic violence in New South Wales were in Bourke, Walgett and Connamble. Statistics show that the level of domestic violence reported in these areas was at least 3.9 times the average for the State as a whole.3 Victims in these towns face even greater barriers to the legal system then their city counterparts due to their low socio-economic status resulting from lower levels of education and lower incomes. Recent research shows that victims from low socioeconomic backgrounds are more likely to have a lower social wellbeing after the crime.4 Therefore for these three areas in particular, not only do they have the highest reported levels of domestic violence in New South Wales, they are also expected, according to research, to have a lower level of social wellbeing following such attacks. Communities that have such inherent disadvantages require greater assistance to legal information and advice. Simply establishing services is only the first step. Victims in these areas particularly need active assistance to even report such violence.
It is important to note that these statistics are generated from reported cases of domestic violence. Domestic violence crimes are notor iously unreported and therefore these statistics arguably elucidate only the most serious of cases. This is evidenced by the fact that from 2000–2004 the number of female victims reporting domestic violence only increased by 2% from 45% to 47%.6 These statistics suggest that victims of domestic violence are generally remaining silent about these crimes. This can be attributable to issues of individual safety and an inability to access the relevant legal advice and information when needed.
The low socio-economic background of many victims of domestic violence means that they
The services provided for domestic violence victims such as the Women’s Legal Services are a great entry point into the legal system for victims. However, an even larger matter arises from this point: male victims. While females make up the majority of domestic violence victims, it is a great misnomer that only females can be victims; 28.9% of reported victims are in fact male.7 It is at this stage that there ap pears to be the greatest gap between the needs of victims and their ability to access the legal system. The services that are provided to help victims of domestic violence, not only get out of abusive relationships, but gain an entry Court of Conscience | 25
of such a crime have emerged out of the attitudes and stigma attached to the family relationship, whereby the male is in charge and holds all the power. Male victims therefore face an added barrier to achieving justice for these types of crimes that are deemed crimes against ‘females’. point into the legal system are predominately focussed towards women. This misconception surrounding the victims of such a crime have emerged out of the attitudes and stigma attached to the family relationship, whereby the male is in charge and holds all the power. Male victims therefore face an added barrier to achieving justice for these types of crimes that are deemed crimes against ‘females’. The Law Council of Australia released the Family Law Committee Report in 1980, written over three decades ago. This paper gives an insight 26 | Court of Conscience
into the attitudes towards domestic violence in the 1980s which can be compared to that of today. In particular ,the report deals with issues surrounding the police’s reluctance to intervene. While several reasons were sug gested, the report was based around a recurring theme: ‘the victim may change her story’.8 Noticeably, the victim is referred to as feminine. This continues throughout the entire report, where male victims have failed to be mentioned. Unfortunately it appears that this misnomer has carried on through the decades with victims generally referred to, and expected to be female. This is
Copyright by Moyan Brenn http://www.flickr.com/photos/aigle_dore/4571736098/
–––––––– This misconception surrounding the victims
an area where access to support services in the short run and the legal system in the long run is lacking. Access for domestic violence victims needs to be unisex. The establishment of male only services, mirroring that which already exists for females, is the first step in ensuring justice for male victims. The second interesting point made by the report is that there was ‘a police belief (often based on rumour) that the victim deserved ception has arguably what she got.’9 This per improved over the last 30 years due to greater education for the police and the public in general. However, the low rates of reported cases infer that the stigma attached to this crime is not yet eradicated and remains dominant throughout society. A report written in 2009 discusses the influence that different attitudes can have concerning victims of domestic violence. The ‘contextual factors’ result in different sub populations holding differing views on such vio lence. For example, in many Aboriginal com munities, and among people with disabilities, such violence is more accepted and generally deemed a family matter.10 This mentality creates problems for victims accessing the legal system for the very fact they fail to report the issue in the first place. The fear of speaking out because of such societal mentalities is intensified for male victims. Through improved services, both legal and non-legal victims may be encouraged to get help; after all, domestic violence is one of the most horrific and, unfortunately, common crimes there is. Victims that fall into especially disadvantaged groups such as those mentioned above require a higher level of assistance when engaging with the legal system.
–––––––– The second
interesting point made by the report is that there was ‘a police belief (often based on rumour) that the victim deserved what she got.’9 ReferenceS 1 Crimes (Domestic and Personal Violence) Act 2007 s11 – meaning of ‘domestic violence offence’; s4 – meaning of ‘personal violence offence’; s5 – meaning of ‘domestic relationship’. 2 Crimes (Domestic and Personal Violence) Act 2007 s 11. 3 Don Weatherburn, ‘Trends and Patterns in Domestic Violence’ (Media Release, NSW Bureau of Crime Statistics and Research, 2005) http://www.bocsar.nsw. gov.au/lawlink/bocsar/ll_bocsar.nsf/pages/bocsar_mr_ cjb89. 4 Australian Bureau of Statistics, ‘In Focus: Crime and Justice Statistics, July 2012’ (2009) http://www.abs.gov. au/ausstats/abs@.nsf/Lookup/4524.0Chapter700July%20 2012. 5 Julia Wentz, ‘Justice Requires Access to the Law’ (2005)
The major barrier to any legal service provided to victims is the state of mind of the victim themselves. Finding one’s self in an abusive relationship no doubt is a traumatic experience and one where victims often feel very alone. The inability for victims to then think logically during such a traumatic situation hinders their ability to access the appropriate information and help even when it is available. Access to legal information is therefore only as helpful as the individual will allow it to be. This is the legal system’s main folly.
36 Loyola University of Chicago Law Journal 641–647. 6 Weatherburn, above n 3. 7 Ibid. 8 Law Council of Australia, ‘Committee Report c 80 Family Law Committee’ (Law Council of Australia, The Federal Council of Bar Associations and Law Societies, 1980) 9 Ibid. 10 Australian Bureau of Statistics, ‘Conceptual Framework for Family and Domestic Violence’ (2009) http://www. abs.gov.au/ausstats/abs@.nsf/Products/90CB5D75D47 DDF3BCA2575B700176CDD?opendocument.
Court of Conscience | 27
Frances Gibson
Beyond Human Rights: An International Agreement on Animal Rights?
image: http://www.flickr.com/photos/misterpain/
F
28 | Court of Conscience
or over 150 years we have seen debates, battles, demonÂstrations and activism around the world which have led to massive changes in legal rights for many people including indigenous peoples, people of different races, women and people with a disability. We have the great UN Rights documents, the Declaration of Human Rights, the International Convention on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of Persons with Disabilities, Declaration on the Rights of Indigenous people etc. But if I were to tell you that the next great rights frontier would be in relation to animals you may well be sceptical. Animals canâ&#x20AC;&#x2122;t have rights. But could they? Or should they? Is there a place for an International Convention on Animal Rights?
Court of Conscience | 29
Animal law as a field of study is new to Australia. It was only in 2005 that UNSW offered the first animal law course taught in Australia. It is difficult to envisage legal changes to the Constitution in Australia to benefit animals, or a government being a signatory to an animal rights convention but there are many advocates working on animal rights issues both from a rights perspective and an animal welfare approach and ultimately, judging by developments in other social movements, change will come. As any good law student knows, animals are categorised in our legal systems as property. Halsbury’s states that ‘[d]omestic animals, like other personal and moveable chattels, are the subject of absolute property.’1 Historically, animals have been classified as ‘domestic’ or ‘wild’, and many of the common law principles of ownership, property and theft depend upon this classification. Domestic animals in law are the subject of absolute property.2 Wild animals will be public property when in their natural state not under human control, or the object of qualified property when they are under direct human control if tamed, confined etc.3 The absolute right of ownership of animals as property is, of course, affected by animal welfare legislation which has been said to originate in the courts ‘safeguarding the inviolability of a person’s possessions.’4 Legislation and policy in this area has had an impact on how animals are treated however not to their status under the law. As Gary Francione states: The status of animals as property has severely limited the type of legal protection that we extend to nonhumans. As a general matter, whenever we seek to resolve a perceived human-animal conflict, we balance our assessments of the human benefits to be derived from the animal use against the interests of the animal(s) that will be ‘sacrificed’ in the process. The limiting principle of this balancing process is that we treat animals ‘humanely’ and that we not subject them to ‘unnecessary’ suffering. The problem is that the balancing process is nothing more than an 30 | Court of Conscience
illusion in which the outcome has been predetermined in light of the very different status of the supposedly competing parties. It is simply not possible to balance meaningfully human interests, which are protected by claims of right in general and of a right to own property in particular, against the interests of property, which exist only as a means to the ends of persons. This balancing is particularly unrealistic where, as here, the assessment is almost always sought to be made in the context of a human property owner seeking to act upon her animal property.5
–––––––– The status of animals as property has severely limited the type of legal protection that we extend to nonhumans.
So animals are property under the law, and always have been. Should we then regard that as the end of the matter? Perhaps not. As we all know, the law can be changed. Slaves were previously seen by the law as being the property of their owners.6 In the 1772 case of James Somersett mentioned by Blackstone,7 Mr Somersett had been made a slave in Africa, was sold then carried to Virginia where he was bought and brought by his master to England. He ran away from his master, who seized him and carried him on board a ship, where he was confined in order
to be sent to Jamaica to be sold as a slave. Under a habeas corpus writ instigated by friends, Mr Somersett was brought to the court and eventually freed. As Steven Wise has pointed out: The defining moment for the eighteenth century slave James Somersett was when he became legally visible. He was a legal thing when he landed in England in 1769, having been captured as a boy in Africa, then sold to a merchant in Virginia, Charles Steuart, for whom he slaved for two decades. As a legal thing, James Somersett existed in law for the sake of Charles Steuart, for legal things, living and inanimate, exist in law solely for the sake of legal persons. They are invisible to civil judges in their own rights. Only legal persons count in courtrooms, or can be legally seen, for only they exist in law for their own benefits. Legal personhood is the capacity to possess at least one legal right; accordingly, one who possesses at least one legal right is a legal person. James Somersett’s legal transubstantiation from thing to person at the hands of Lord Mansfield in 1772 marked the beginning of the end of human slavery.8 Wise has set up the Nonhuman Rights Project, which aims to persuading an American state higher court to similarly transform a nonhuman animal.9 To many people the idea of giving animals legal rights seems absurd or dangerous. Many people believe that the planet and animals on it exist for the benefit of humans. Most humans eat animals and point to the fact that animals eat other animals. This is seen as the natural order of things. The strongest win out and humans are the most powerful and the most intelligent. The idea of animal rights is threatening to the way the humans generally conduct their business. Medical researchers have long been concerned about activities of animal rights activists and their potential effect on research activities designed to benefit humans.10 Even some of the most passionate
of social justice and rights advocates eye the animal rights debates with dismay. Why are we thinking about animals when there is so much to do to alleviate human distress and misery through legal advocacy? But there are other ways to look at the issue. The term ‘speciesism’ refers to a widely held belief ‘that the human species is inherently superior to other species and so has rights or privileges that are denied to other sentient animals.’11 But what is the basis for this professed superiority? We like to distinguish ourselves from animals by saying that only humans are rational, can use language, are self-aware, or are autonomous. But these abilities, significant as they are, do not enable us to draw the requisite line between all humans and nonhuman animals. For there are many humans who are not rational, selfaware, or autonomous, and who have no language - all humans under three months of age, for a start. And even if they are excluded, on the grounds that they have the potential to develop these capacities, there are other human beings who do not have this potential. Sadly, some humans are born with or develop disabilities so severe that they will never be able to reason, see themselves as an independent being, existing over time, make their own decisions, or learn any form of language. It is perhaps a better view to see all animals as part of life on the planet and it is no great leap of imagination to see animals as being something more than property of humans. So is there any capacity to achieve change in the law in respect of animal status? This does not mean that animals should have the same legal rights as humans, but as Peter Singer says: The fundamental form of equality is equal consideration of interests, and it is this that we should extend beyond the boundaries of our own species. Essentially this means that if an animal feels pain, the pain matters as much as it does when a human feels pain – if the pains hurt just as much. How bad pain and suffering are does not Court of Conscience | 31
––––––––––––––––––––– One interpretation of respect
of law, and dead animals shall be treated with respect. The Declaration has never reached any significant level of international agreement.
depend on the species of being that experiences it.12 Paola Cavalieri sees the property status of animals as the basic obstacle to non human rights. Basic rights that are sought for animals include a right to life, right to habitat, right to liberty; even a right to property (in that honey could not be taken from bees, or milk from cows).13 Although animals are still regarded as property, there are some indications that legal change is possible and may be coming. In the last three years there has been a plethora of legislation regarding animal welfare in many countries. For example, in 2002, the German constitution was amended to add the words ‘and animals’ into this provision.
Article 20a Protection of the natural foundations of life and animals Mindful also of its responsibility toward fu ture generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.14 In March 2010, a referendum was held in Switzerland proposing that a State lawyer be appointed in each canton to run animal abuse cases. This measure was defeated but Swit zerland now has probably the strictest rules anywhere when it comes to caring for pets and farm animals. The country’s 160-page 32 | Court of Conscience
animal protection law states exactly how much space owners must give Mongolian gerbils (233 square inches) and what water temperature is required for African clawed frogs (18-22 degrees Celsius; 64-72 degrees Fahrenheit). It stipulates that pigs, budgies, goldfish and other social animals cannot be kept alone. Horses and cows must have regular exercise outside their stalls and dog owners have to take a training course to learn how to properly look after their pets.15 In Norway, new animal legislation has an explicit intention to promote respect for animals and its recognition of animals’ intrinsic value. Whereas intrinsic value is only given a symbolic function, the notion of respect is intended to have practical consequences. One inter-pretation of respect for animals is taking the animals’ integrity – and not only welfare – into account.16
International agreements There is no general convention for the pro tection of animals on an international basis though a few moves in this direction have been made. The first draft of a Universal Declaration of Animal Rights was presented on 15 October 1978 in the UNESCO House in Paris. The text was then revised in 1989 by the International League of Animal Rights and submitted to the UNESCO Director General in 1990.17 Among the Declaration’s pronouncements were that all animals have the same rights to existence, no animal shall be ill-treated or subject to cruelty, animals shall command the protection
image: http://www.flickr.com/photos/misterpain/
for animals is taking the animals’ integrity – and not only welfare – into account.
More recently, some of the world’s leading animal welfare organisations started cam paigning for the United Nations to adopt a new declaration. This time the declaration is on the welfare of animals rather than on animal rights: the Universal Declaration on Animal Welfare (‘UDAW’).18 According to the World Society for the Protection of Animals, UDAW is an attempt to secure international legal recognition for the principles of animal welfare. It is an ‘agreement among people and nations to recognise that animals are sentient and can suffer, to respect their welfare needs, and to end animal cruelty – for good.’19 The UDAW arose from the Manila Conference on Animal Welfare in 2003, and is underpinned by four foundational principles: a the welfare of animals is a common objec tive for all; b the standards of animal welfare attained by each state shall be promoted, recognized, and observed by improved measures na tionally and internationally; c all appropriate steps shall be taken to pre vent cruelty to animals and to reduce their suffering; and d appropriate standards on the welfare of ani mals shall be developed.20 Most attempts to give protection to animals on the international scene have been ‘ad hoc and focused upon individual species’21, such as the Great Apes and whales, which have been seen as being special cases. There has been recognition, however, of the need for protection for endangered species. The Convention on International Trade in En dan gered Species of Wild Fauna and Flora (‘CITES’) subjects international trade in speci mens of selected species to controls. All import, export, re-export and introduction from the sea of species covered by the Convention has to be authorised through a licensing system and the effects of trade on the status of the species must be monitored.22 The Convention on the Conservation of Migra
tory Species of Wild Animals (also known as CMS or the Bonn Convention) aims to conserve terrestrial, aquatic and avian migratory species throughout their range.23 Obviously, we are a long way from recognising that animals have legal rights in international and domestic spheres. No declaration of rights will have immediate results and there are still many humans who suffer even where there are legally enforceable rights. Recognition of animal rights will no doubt be a long process but, given the history of social change, it seems inevitable. Creative and passionate lawyers will be needed to effect change in this area. While animals are seen as merely property, they will always be subject to the needs of their owners above all. As rapid and far-reaching developments in public awareness of animal welfare occur we move step by step closer to community acceptance of recognition of rights. Court of Conscience | 33
1 LexisNexis, Halsbury’s Laws of Australia, (at 15 June 2012) 20 Animals, ’1 Property in Animals’ [20-50]. 2 Saltoon v Lake [1978] 1 NSWLR 52. 3 Deborah Cao, Animal Law in Australia and New Zealand (Thomson Reuters, 2010) 73. 4 Mike Radford, Animal Welfare in Britain: Regulation and Responsibility (Oxford University Press, 2001) 101. 5 Gary L Francione, Animals as Property (Animal Legal & Historical Center, 1996) http://www.animallaw.info/ articles/arusgfrancione1996.htm. 6 See, eg, Scott v Sanford 60 US 393 (1856), where it was held that ‘Negroes’ were ‘property’ and not ‘citizens’: at 451. The Court cited the United States Constitution as support for its holding, stating that ‘the right of property in a slave is distinctly and expressly affirmed in the Constitution’: at 451; see also Marjorie Spiegel, The Dreaded Comparison: Human and Animal Slavery (Mirror Books, 3rd ed, 1996). 7 William Blackstone and Thomas Cooley, Blackstone’s
13 See Paola Cavalieri, The Animal Question: Why Nonhuman Animals Deserve Human Rights (Oxford, 2004) 142. 14 Grundgesetz fur die Bundesrepublik Deutschland Basic Law of the Federal Republic of Germany art 20(a). 15 Frank Jordans, ‘Swiss Say No to Animal Lawyers’, The Independent (online), 5 September 2012 http://www. independent.co.uk/news/world/europe/swiss-say-no-toanimal-lawyers-1917809.html. 16 Ellen-Marie Forsberg, ‘Inspiring Respect for Animals Through the Law? Current Development in the Norwegian Animal Welfare Legislation’ 24 (2011) Journal of Agricultural and Environmental Ethics 351. aap/pages/uk/UDAR_uk.html at 14 June 2012. 18 For discussion of this proposal, see Miah Gibson, ‘The Universal Declaration of Animal Welfare’ (2011) 16 Deakin Law Review 539, 546. 19 Michael C Appleby and Lorna Sherwood, Animal Welfare Matters to Animals, People and the
Volumes (Lawbook Exchange, 3rd ed, 2003) vol 1, 334.
Environment: the Case for a Universal Declaration on
Rights Project’ (2010) 717 Animal Law 1, 2. 9 The common law transformation of a nonhuman animal
Animal Welfare (Lobby Brochure, WSPA, 2007) http:// www.wspa.org.au/Images/UDAWLobbyBrochure_ tcm30-3534.pdf.
from ‘legal thing’ to ‘legal person’ is a primary objective
20 Caley Otter, Siobhan O’Sullivan and Sandy Ross, ‘Laying
of the Nonhuman Rights Project. For information on the
the Foundations for an International Animal Protection
Non Human Rights Project, see http://www. nonhumanrightsproject.org/. 10 See, eg, Richard P Vance, ‘An Introduction to the Philosophical Presuppositions of the Animal Liberation/ Rights Movement’ (1992) 268 Journal of the American Medical Association 1715, 1715. 11 Richard D Ryder, Speciesism http://www.richardryder. co.uk/speciesism.html. 12 Debate between Richard Posner and Peter Singer, June 11–15 2001 http://www.utilitarian.net/singer/interviewsdebates/200106--.htm.
Maddalena Arnfield
17 Text of the Declaration is at http://jose.kersten.free.fr/
Commentaries on the Laws of England: Four Books in 2 8 Steven M Wise, ‘Legal Personhood and the Nonhuman
http://www.flickr.com/photos/doxiehaus/3568405719/ http://www.flickr.com/photos/lasandri/5932352747
References
Regime’ (2012) 2 Journal of Animal Ethics 53, 66. 21 Al Gillespie, ‘Animals Ethics and International Law’ in Peter Sankoff and Steven White (eds), Animal Law in Australasia: A New Dialogue (Federation Press, 2009) 333, 334. 22 CITES 27 UST.1087. TIAS No 8226. Article II < http:// www.cites.org/eng/disc/how.php> at 12 June 2012. 23 CMS Convention on Migratory Species 19 International Legal Materials (1980) 15. Article III. 4 (c).
Marriage Equality and the Civil Union ‘solution’ ‘ Any ‘alternative’ to marriage, in my opinion, simply offers the insult of formal equivalency without the promise of substantive equality.’ Harry Laforme, Former Justice of the Ontario Superior Court of Justice1
34 | Court of Conscience
Court of Conscience | 35
S
A global movement This is not a local initiative; the marriage equality movement is global. In 2001, the Netherlands made history as the first nation in the world to recognise gay marriage. Belgium followed in 2003. Against all odds, in 2005, the pre dominantly Catholic Spain legalised same-sex marriage and a few short weeks later Canada enacted the Civil Marriage Act2 providing a gender neutral definition of marriage. South Africa recognised gay marriage in 2006 and Norway and Sweden in 2009. Portugal, Iceland and Argentina all legalised gay marriage in 2010. Earlier this year, US vice president Joseph Biden came out in a show of public support and three days later there was a collective cheer from GLBT groups around the world as President Obama endorsed same-sex marriage. Taiwan is tipped to be the first East Asian country to allow gay marriage with two women planning Taiwan’s first Buddhist wedding in August 2012, while Vietnam is likewise progressing on the issue. Australia’s neighbour New Zealand is set to have a conscience vote before the year is through with many confident the bill will be passed. However, the situation in Australia is not looking so positive. Momentum has stalled at a Federal level while Parliament considers various marriage equality bills. Yet with Coalition leader Tony Abbot refusing to 36 | Court of Conscience
Australia, the last decade
–––––––– … New Zealand is set to have a conscience vote before the year is through with many confident the bill will be passed.
allow his party a conscience vote, the fate of the bills looks to be predetermined. Encouragingly, a state level revolt against this inequality is currently occurring. Tasmania is leading the way, moving to enact marriage equality legi slation at a state level, in response to the continued blocking of bills at a Federal level. South Australia, the ACT and NSW have likewise announced plans to introduce marriage equality legislation at a state level. In light of this, it is an ideal time to canvas the reforms in Australia, and consider what the driving force behind the campaign is and why civil unions are an insufficient substitute for full marriage equality.
http://www.flickr.com/photos/monopache/7439352654/
ocial media is humming with campaigns for marriage equality. Social Justice Campaigners such as Get Up, and minority parties including the Socialist Alliance have leant their support, while lobby groups such as Australian Marriage Equality have been established to fight for change. Parliament is debating the pros and cons of various Marriage Amendment bills and the Federal Labor government have recently changed their party policy to endorse gay marriage. Support for removal of discrimination against same-sex couples is gaining momentum. Some are even predicting that the privileged space which homophobia currently occupies will soon be nothing more than a shameful part of our history, akin to life before the women’s liberation or civil rights movements of the sec ond half of the twentieth century.
The same-sex marriage debate has been at the forefront of Australian politics in recent years. Over the last decade we have moved towards equality with state-based reforms to remove discrimination against same-sex de facto couples occurring between 1999 and 2007. 2008 saw a huge victory for the GLBT community with the amendment of more than 84 pieces of Commonwealth legislation to re move discrimination against same-sex couples and their children following a report by the Australian Human Rights Commission.3 Cur rently, the ACT, Tasmania, Queensland, Victoria and New South Wales allow official civil unions and/or give same-sex couples access to do mestic partnership registries which may assist in demonstrating that a de facto relationship exists under the Property (Relationships) Act 1984 (Cth). This, in turn, affords legal rights to the couple. However, the movement has not only created positive change. In response to rallying for marriage equality, then Attorney-General Philip Ruddock introduced the Marriage Amendment Bill 2004 (Cth) that later in the year received royal assent to become the Marriage Amend ment Act 2004 (Cth). The Act inserted a definition of marriage into s 5(1) of the Marriage Act 1961 (Cth) defining it as ‘the union of a man and a woman to the exclusion of all others’ and s 88EA was inserted to ensure that the unions of same-sex couples married overseas would not be recognised in Australia. Explanatory memorandum accompanying the Bill stated that this was ‘to give effect to the Government’s commitment to protect the institution of marriage by ensuring that marriage means the union of a man and a woman and that samesex relationships cannot be equated with marriage.’4 The objective of the amendments was to quash any attempts to legally challenge the common law definition of marriage.5
The bills these amendments, described at the time as ‘legislation of hate’ by Greens Senator Bob Brown,6 have not deterred supporters of samesex marriage. In 2009, fellow Greens Senator
Sarah Hanson-Young introduced the Marriage Equality Amendment Bill 2009 (Cth). A Senate Inquiry reported negatively by November the same year alongside a recommendation to develop a national relationship recognition framework; the bill was negatived upon second reading in February, 2010.7 Undeterred, HansonYoung introduced a second bill in 2010 and it was referred for inquiry and report in February this year. An unprecedented number of submis sions were received and the committee tabled its report on the 25th June 2012 to be taken into account when debating and voting on the bill occurs.8 Among the submissions were recom mendations in favour of marriage equality from the Law Council of Australia and the Australian Human Rights Commission. It has been an important year for parliamentary debate regarding marriage equality. On the 13th February, the Marriage Amendment Bill 2012 (Cth) and the Marriage Equality Amend ment Bill 2012 (Cth) were introduced into the House of Representatives. Three days later the House of Representatives Committee began an inquiry into the bills. According to Explan atory Memorandum, the Marriage Equality Amendment Bill 2012, co-sponsored by Greens MP Adam Bandt and Independent MP Andrew Wilkie, aims to remove all dis crimi nation against people based on sex, sexual orientation and gender identity from the Marriage Act 1961, recognise that freedom of sexual orientation and gender identity are fundamental human rights and reverse the discriminatory 2004 amendments made to the Marriage Act 1961.9 Adam Bandt gave a moving first reading speech calling the day ‘historic’ and an ‘important step for forward for human rights’.10 He reiterated the sentiment that love knows no boundaries and that attempts to limit love will not succeed as we move further into the 21st Century. The Marriage Amendment Bill 2012 likewise contains an amendment to the definition inser ted in s 5(1) by the Marriage Amendment Act 2004, calling for the definition to be changed to ‘the union of two people, regardless of their sex’. It contains a statement of compatibility Court of Conscience | 37
Some sections of the Liberal party, however, are calling on the Coalition leader to allow its members a conscience vote. Greens leader Christine Milne has suggested avoiding a vote on the issue until Abbott allows this and this may be a wise move; if the Liberal party are forced to vote along party lines, while Labor is allowed a conscience vote, the marriage equality bills will fail. http://www.flickr.com/photos/doxiehaus/3568405719/
with human rights prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) and frames the bill in terms of extending equal access to marriage to all adults, irrespective of sex, ending discrimination and protecting religious freedom. Indeed both the Bills contain proposed amendments to s 47 of the Marriage Act 1961 to ensure religious cele brants or ministers are not required to solemnise a marriage that is at odds with their religious beliefs.
Where the parties stand While the Greens party policy has been in support of marriage equality for years it wasn’t until December 2011 at the Australian Labor Party’s 46th National Conference that the ALP changed their party policy on same-sex mar riage to a position of support. However, 208 delegates to 184 delegates called for a conscience vote on the issue in parliament allowing Labor MPs to avoid voting along party lines when it comes to gay marriage. A conscience vote is due to occur later in the year. Notwithstanding the Labor party’s support on the issue of gay marriage, Prime Minister Julia Gillard has refused to change her position. She has publicly and repeatedly stated her opposition to further amendments to the Marriage Act 1961, supporting the definition of marriage as exclusively between a man and a woman. However, she has failed to provide an adequate explanation for her position with some speculating it is due to deals made with powerful Christian lobby groups and/or poli ticians. Even the evolution of friend Barack Obama to a position of full support for marriage equality hasn’t compelled Gillard to revisit her views on the matter. Her response to the question, speaking to Jon Faine on ABC radio, was that her view has not changed and she would not vote for a bill when it comes to Parliament later this year, prompting Jon Faine to call into question her progressive politics.11 However, the simple act of allowing the debate was applauded by openly gay Senator Penny Wong who said ‘it says something about the measure of the woman.’12 38 | Court of Conscience
–––––––– Liberal party policy
remains opposed to any amendments to the Marriage Act that would allow same-sex couples to marry. This is more than can be said about opposition leader Tony Abbott who has refused to allow Liberal MP’s a conscience vote on gay mar riage. The Liberal party policy remains op posed to any amendments to the Marriage Act that would allow same-sex couples to marry. In a Q&A session Abbott conceded that gay people deserved dignity and respect and while ‘terrific’ gay relationships did exist he did not believe marriage was the correct term for it.13
Segregationist doctrines commonly used in support of civil partnerships are what their name implies. Segregation. Not only do they relegate same-sex couples to second class citizens, but they provide a basis for facilitating discrimination. Former Justice of the Ontario Superior Court of Justice in Canada and supporter of same-sex marriage, Harry La forme summed up the issues with a separate but equal approach to marriage, stating:
Why civil unions aren’t enough the question that bears consideration is why civil unions or marriage by another name are not enough. Both ‘solutions’ have been endorsed by members of the Liberal and Labor parties at one time or another. Liberal front bencher, Malcolm Turnbull has pushed for civil unions as a substitute for marriage equality in the 6th Annual Michael Kirby Lecture earlier this year. Tony Abbott has said ‘I just don’t think that marriage is the right term to put on it’ but supports rights for same-sex couples in other forms.14 The Labor party have changed their policy platform, but will allow their members a conscience vote in a watering down of support. Currently there is a statebased civil union scheme in some Australian states. Those agitating for change, however, find these solutions insufficient and dis criminatory; not only do they create a two tiered structure to relationship recognition in Australia but they provide little security to same-sex couples as evidenced by the recent changes in Queensland.
Segregationist Doctrines A paper entitled ‘In support of equal marriage: Why civil partnership is not enough’ captures the essence of the two tiers issue with a simple premise; separate but equal is not equal.15 The authors liken the push for marriage equality to the civil rights movement of the United States, particularly the landmark case Brown v. Board of Education16 heard in the US Supreme Court. It was held that while school facilities might be the same, the segregation of schools based on race contra dicted the guarantees of equality set out in the Constitution. This has important implications for marriage equality.
‘ Any ‘alternative’ status that nonetheless provides for the same financial benefits as marriage in and of itself amounts to segregation... [the issue] is about access to a deeply meaningful institution – it is about equal participation in the activity, expression, security and integrity of marriage. Any ‘alternative’ to marriage, in my opinion, simply offers the insult of formal equivalency without the promise of substantive equality’.17 Former High Court of Australia Justice and GLBT advocate, Michael Kirby, has likewise highlighted the concerns with a two-tiered approach while speaking to the senate inquiry into same-sex marriage. Although, he has been in a committed, stable relationship for the past 43 years he is still ‘a second class citizen’ and he will remain so until formal marriage equality is extended to same-sex couples.18
Australian’s International Human Rights Obligations Relevant here are Australia’s obligations under article 26 of the International Covenant on Civil and Political Rights (ICCPR) which states that ‘all persons are equal before the law’ and ‘the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex...’.19 The reference to ‘sex’ was inter preted as a reference to gender as well as ‘sexual orientation’ by the UN Human Rights Committee in Toonen v Australia.20 The marriage ‘ban’ put in place by the insertion of s 5(1) into the Marriage Act arguably violates Australia’s obligations under article 26 of the ICCPR. Interestingly, the ICCPR was also mobilised by Court of Conscience | 39
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those in opposition to same-sex marriage in the Senate Committee Marriage Equality 2012 report.21 The ‘Dissenting Report by Coalition Sen a tors’ highlighted the fact that Article 23 specifically refers to marriage as between ‘men and women,’ while gender neutral terms were used elsewhere in the ICCPR. Accordingly, the Coalition Senators determined that Australia was not violating its obligations under Article 26 by limiting marriage in s 5(1).22
State based civil unions On another level, the state-based civil union scheme that currently exists offers little secu rity for same-sex couples, as evidenced by the recent changes made by the Newman Govern ment in Queensland. In June this year Queens land Premier Campbell Newman made amend ments to Queensland’s Civil Partnerships Act23 removing the option of a state sanctioned voluntary ceremony because it mimicked mar riage, while referring to the offensiveness of the legislation to Christian Churches.24 There was further talk about amending the proce dures for dissolving a civil union, again because it emulated divorce. In addition, the repeal of certain provisions in Queensland’s surrogacy laws will affect those who are not married, legally restricting access to surrogacy.25 Whilst not a direct attack on same-sex couples be cause it catches single people and de facto relationships in its net, the implications are different for those who are legally prevented from marrying.
A representative democracy? Newman’s consideration of the offensiveness of the legislation to Christian groups is ques tionable, but unfortunately this is not an un common argument utilised by those who oppose same-sex marriage. Often, religious arguments creep into political rhetoric, some times insidiously and sometimes overtly. It is important to remember that Churches do not hold a monopoly over marriage and the Aus tralian Government is a secular one. Marriage is and should be a civil institution; religious convictions should not colour the way our politicians vote nor find their way into political rhetoric. Australia is a representative demo 40 | Court of Conscience
–––––––– Newman’s
consideration of the offensiveness of the legislation to Christian groups is questionable, but unfortunately this is not an uncommon argument utilised by those who oppose same-sex marriage. Often, religious arguments creep into political rhetoric, sometimes insidiously and sometimes overtly.
cracy and with current polls reporting that up to 60% of Australians now support marriage equality, the personal religious beliefs or the extent of a Christian lobby group’s capital should not be determining factors. Instead Julia Gillard, Tony Abbott and the various state governments should listen to the voices of those they are representing. As MP Graham Perrett aptly stated in the House of Repre
sentatives Advisory Report: ‘ It is important to remember that God did not write the Marriage Act. It is written by lawyers and legislators and must reflect the views and values of today. And every Member of Parliament is charged with the duty of ensuring that our laws best protect the values and beliefs of all of the people we represent.’26
ReferenceS 1 Citation
18 Josephine Tovey, Why I’m Treated Like a Second Class
2 The Civil Marriage Act S.C. 2005, c. 33
Citizen: Justice Michael Kirby, Sydney Morning Herald
3 Human Rights and Equal Opportunity Commission,
(May 2012) http://www.smh.com.au/national/why-im-
Same-sex: Same Entitlements, National Inquiry into Discrimination against People in Same-sex Relationships: Financial and Work Related Entitlements and Benefits, Final Report (2007). 4 Explanatory memorandum, Marriage Amendment Bill 2004, 1. 5 Commonwealth, Parliamentary Debates, House of Representatives, 27 May 2004 (Philip Ruddock). 6 Commonwealth, Parliamentary Debates, Senate, 12 August 2004 (Bob Brown). 7 Legal and Constitutional Affairs Legislation Committee,
treated-like-a-secondclass-citizen-justice-michael-kirby20120503-1y0o3.html 19 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) 20 CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 1994. 21 Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Inquiry into Marriage Equality Amendment Bill 2010 (2012). 22 Ibid 89.
Parliament of Australia, Inquiry into Marriage Equality
23 Civil Partnerships Act 2011 (Qld)
Amendment Bill 2009 (2009).
24 Robyn Ironside and Koren Helbig, ‘Premier Campbell
8 Legal and Constitutional Affairs Legislation Committee,
Newham Changes Civil Union Laws to Remove ‘Mimicry
Parliament of Australia, Inquiry into Marriage Equality
of Marriage’, Courier Mail (June 2012) <http://www.
Amendment Bill 2010 (2012).
couriermail.com.au/news/premier-campbell-newman-
9 Explanatory memorandum, Marriage Equality Amendment Bill 2012, 2. 10 Commonwealth, Parliamentary Debates, House of
expected-to-repeal-laws-granting-civil-unions/storye6freon6-1226392900908> 25 Surrogacy Act 2010 (Qld).
Representatives, 13 February 2012, 1 (Adam Bandt).
26 Standing Committee on Social Policy and Legal Affairs,
11 ABC, Melbourne: Mornings, 10 May 2012 (Jon Faine,
Parliament of the Commonwealth of Australia, Advisory
Julia Gillard). 12 Philip Coorey, Labor backs gay marriage, Sydney
Report: Marriage Equality Amendment Bill 2012 and Marriage Amendment Bill 2012 (2012).
Morning Herald (December 2011) http://www.smh.com.au/national/labor-backs-gaymarriage-20111203-1oc4d.html 13 ABC, Q&A, 17 August 2010, Tony Abbott. 14 ABC, Q&A, 17 August 2010, Tony Abbott. 15 Sue Wilkinson and Celia Kitzinger, ‘In Support of Equal Marriage: Why Civil Partnership is Not Enough’ (2006) The Psychology of Women Section Review 54. 16 347 US 483 (1954). 17 Halpern v Canada [2003] OJ No 2268
Court of Conscience | 41
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42 | Court of Conscience
THE THREAT TO MINORITY GROUPS IN THE “NEWLY DEMOCRATIC” REPUBLIC OF EGYPT
A
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R O F Y R O T C I V A A D N A Y C A R C O DEM L A S R E V I N U R O F S LOS S T H G I R N A M U H
Marie Iskander
s the previous dictatorial and corrupt Egyptian regime was unrivalled for thirty years, the ousting of Hosni Mubarak on the 11th of February 2011 by the Egyptian people, has been labelled as nothing short of miraculous. The world shared in on this euphoria when words like democracy, justice, human rights, equality and freedom were repeated globally in every newspaper and social networking website. What seemed like a newfound sense of hope for the world’s most ancient civilisation, has unfortunately been short lived. Many minority groups in Egypt are now in fear that the future of the Egyptian people has been placed in the hands of a group of individuals more tyrannical than their predecessor. On the 30th of June 2012, the Muslim Bro therhood’s Mohammed Morsi was sworn in as Egypt’s first democratically elected presi dent since the ‘revolution’ which overthrew Mubarak’s regime. What, on the face of it, appears to be a victory for democracy in the Arab world has in fact become a serious threat to the state of basic universal human rights which exist in Egypt.
1. When democracy contributes to regression rather than progression… Under Egypt’s previous Constitution, Article 2 stated that Sharia law, that is traditional Islamic law, was Egypt’s “principle source of law”.1 Many minority groups as a result, particu larly women and non-Muslims, were severely discriminated against and perse cuted. One of Mohammad Morsi’s key election promises, to some of the conservative Islam ists who voted for him, was not merely the institution of Sharia law. Rather, the new government proposes to move beyond merely implementing Sharia “principles” and towards codifying Sharia law as the all-encompassing governing law of Egypt.2 As a result, minority groups and secularists have been particularly disillusioned by Egypt’s progress into a “democracy” and feel that Egypt’s democratic elections have only worsened the country’s chances of promoting true equality and human rights.3 Despite claiming to be proponents of demo cracy, the Muslim Brotherhood have fre quently stated that women and non-Muslims Court of Conscience | 43
do not have a right to the presidency.4 The combination of this overtly discriminatory political party, with the institution of Islamic law as Egypt’s governing law, will undoubtedly reduce the chances for human rights surviving in the new (but certainly not improved) Egypt. In fact, under this system of Islamic law and dominantly Islamic parliament, it appears that only “Muslim males” will be considered as “full” and equal citizens.5
2. A losing balancing act between Egypt’s observance of international human rights standards and its adherence to Sharia law As a member of the United Nations, the Arab Republic of Egypt is bound by Article 55(c) of the United Nations Charter, which commits all nations to promote “universal respect for, and observance of, human rights and funda mental freedoms for all without distinction as to race, sex, language or religion”.6 As the only African member state of the United Nations in 1948, Egypt participated in the adoption of the Universal Declaration of Human Rights7 and have since signed and ratified most of the significant international human rights instru ments.8 Despite this, under the previous legal framework and government, where human rights laws were inconsistent with the operation of Sharia law, Sharia law almost inevitably prevailed.9 The first Egyptian Constitution purported to enforce legal equality of all citizens regardless of “race, ethnic origin, language, religion or creed”10 in accordance with Egypt’s interna tional human rights obligations. These princi ples were, however, compromised during the leadership of former President Anwar Sadat,11 whereby under his leadership, Egypt exper ienced a “Great Islamic Transformation”.12 During this transformation the principles of Sharia law were constitutionally entrenched from being “a principle source” in 1971 to “the principle source” of legislation in 1981.13 This thereby limited all legislation to be bound and interpreted according to the tenets of Sharia law.14 It has, however been speculated that the 44 | Court of Conscience
current Islamist government will entrench Sharia law even further into Egypt’s legal system.15 According to Islamic literature, Sharia law originates from the Qur’an and Sunna,[16] thereby rendering it ‘divine law’17 and “the sole valid interpretation of Islam”.18 The impact of the “Islamic transformation” during Sadat’s reign was apparent by the recession of Egyptian nationalism and patriotism in the years that followed Sadat’s leadership, which was replaced with a sense of Pan-Islamism.19 This was evident, for example, in government schools where the daily salute to the flag was replaced with the Islamic proclamation of “Allahu Akbar”.20 Thus, as Sharia law is perceived to be the “literal and final word of God”21, many argue that this justifies super seding human rights laws or obligations in the event of a conflict with Islamic law.22 Contrary to western understanding however, “Sharia law” is not merely one code of law but is a source of Islamic legal doctrines comprised of a variety of inherently contradictory, yet equally valid interpretations.23 This pluralism inherent in the Islamic tradition accommodates the evolution of Islamic law and also provides adherents with a personal choice as to which interpretation they wish to abide by. This pluralism however vanishes once the state codifies Sharia law into state law, as such codification is merely the arbitrary exercise of state power selecting one interpretation out of several other valid choices and enforcing it under the guise of divine law.24 Consequently, Islamic law which is inherently flexible becomes static, to the extent that its application be comes incompatible with modern times and conditions. For this reason, the implementation of Sharia law as the source of law in a nation state should not merely invoke concern in secularists, but should also offend Muslim adherents, as this codification undermines the pluralism inherent in Islam and usurps the power of independent Islamic scholars respon sible for interpreting Islamic law.25 Theorists also challenge the ‘universality’ concept within international human rights law,
arguing that the international human rights agenda is reflective of “Western” standards26 which are incongruent with Islamic norms.27 Through his “Clash of Civilisations” theory, Samuel P. Huntington argues that “Western concepts” such as the rule of law, separation of church and state, equality, liberalism and human rights “have little resonance” with non-western cultures.28 Therefore, the limited effectiveness of human rights law on the behaviour of Islamic Middle Eastern states and their resistance to adhere to the international human rights frame work,29 may be attributed to the perception that the international human rights programme is representative of an imperialistic agenda30 which is dictated by “Judeo-Christian bias”31 and is therefore inappropriately applied where Islamic culture prevails.32 Such ‘universal’ human rights, perceived to be dominated by Western discourse and opposed by Islamic countries, particularly involve civil and political rights which relate to principles of religious freedom and legal equality of all human beings regardless of religion or sex.33 The assertion of Islamic pluralism culminated in 1990 when Muslim countries proposed an Islamic human rights counter model to the existing international human rights framework, through the Cairo Declaration of Human Rights in Islam.34 While this model is consistent with certain principles found in traditional Islamic law, protections in relation to religious free doms and assurances to safeguard the equality of minorities were “notably absent”.35 As a result Elizabeth Ann Mayer argues that this Islamic model substantiates Huntington’s thesis, as the Cairo Declaration in effect represents an “Islamic civilizational model” which affirms that some “universal” human rights concepts as accepted by the “West” are “irreconcilable with Islam”36. Thus although Egypt has traditionally enjoyed a “positive association” with the United Na tions,37 and has ratified the most pertinent international human rights instruments which constitute the International Bill of Human Rights,38 the constitutional entrenchment of Sharia law within Egypt’s domestic legal
system has often justified gross breaches of human rights against minorities.39 This has been particularly evident where international human rights law conflicts with the principles of Islamic Sharia law, in relation to the religious freedoms of non-Muslim minority groups and the equal treatment of women.40 Thus, while some theorists agree that the argument of cultural relativism justifies some divergences away from international human rights law,41 Muslim human rights theorist Abdullahi Ahmed An-Na’im affirms that the rights to “life, liberty and dignity for every individual person or group of people” are non-derogable and should be universally accepted by all cultures.42
3. The precarious case of Coptic Christians and non-Muslims in a democratic Egypt The Arab Republic of Egypt contains the largest Christian population within the Middle East, whereby the Coptic Orthodox, Catholic and Protestant Churches constitute over ten percent of the Egyptian population, which is in effect over eight million people.43 The Coptic Orthodox population in particular, is one of the oldest Christian communities within the Middle East, significantly predating the ‘Arab conquest’ of Egypt in 640 A.D.44 Prior to the arrival of Muslims, Egypt was a Christian province of the Byzantine Empire45 and was renowned as “the Land of the Copts”.46 Following the “Islamic invasion” however, many Coptic Christians were coerced to pay a monetary tax, known as a “jizyah”, or convert to Islam.47 Those who refused were either persecuted or massacred.48 The Christians who agreed to pay the jizyah were called “dhimmis”, which is a term used to describe the second-class status of nonMuslims living in a Muslim country.49 Although the newly elected president, Moham mad Morsi has attempted to assure the Coptic community that they will not be discriminated against, if his government proceeds to imple ment Sharia law, this would sanction a certain degree of discrimination against this religious minority.50 This was particularly prevalent under the former regime whereby non-Muslims were Court of Conscience | 45
non-Muslim minorities were continually discriminated against in public sector employment,52 and most Christians were disqualified from holding judicial or political office,53 while the few that held political positions were heavily censured. denied certain rights and were not considered full citizens of the state.51 This was evident as Christians and other non-Muslim minorities were continually discriminated against in public sector employment,52 and most Christians were disqualified from holding judicial or political office,53 while the few that held political positions were heavily censured. This was particularly seen in the aftermath of the Egyptian revolution, whereby the Coptic Christian governor of Qena, Emad Shehata Michael was called to resign by Islamist protesters who claimed that “a Copt won’t implement Islamic law”.54 Discrimination of Christians is also clearly evi dent within educational institutions, whereby in accordance with the religious curriculum, stu dents are taught that “dhimmas” or non-Mus lims are “infidels”.55 Moreover, Christian tertiary students are denied admission into the publicly financed Al Azhar University,56 and despite their high education qualifications, there are still no Coptic Christians who occupy a university or faculty dean position in Egypt.57 Furthermore, although Article 21 of the Inter national Convention on Civil and Political Rights (ICCPR) stipulates that the “right to peaceful 46 | Court of Conscience
assembly shall be recognized”,58 the previous and current Egyptian governments have continued to impose an “ancient law” which requires Christians to acquire presidential approval or permits from a governor in order to assemble or renovate a church.59 This is particularly problematic as the process of acquiring approval or a presidential decree is often “deliberately entangled”,60 whereby “re quests are purposely lost in the bureaucratic maze”61 and as a result Christian congregations often wait several years to build or repair church property.62 The complexity of this process is clearly reflected by the fact that during the first decade of former President Hosni Mubarak’s leadership, only ten permits were issued,63 and the process is not likely to ease under the current Islamist government. These regulations are not only a clear violation of the religious human rights of Coptic Christians’ rights to worship but are also clearly discriminatory, as the same restrictions are not applied to Egyptian Muslims in constructing Mosques64 and in fact private Mosques are built in large numbers without any official permission.65 Moreover, the Coptic Christian community in Egypt has been subject to persistent persecution
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––––––––– Christians and other
and has been frequently and violently attacked by radical Islamic “mobs”66 who believe that it is their “religious duty” to eliminate adherents who believe in “falsified or perverted” religions, such as Christianity or Judaism67. As a result, several Coptic Christians have been violently murdered on several occasions. Recent events include: 1 the slaughter of twenty-one Coptic wor shipers following a New Years mass in Alexandria on January 1, 2011;68 2 the violent attack on Coptic Christians on March 9, 2011 which resulted in the death of thirteen people and seriously injured forty five people, while over a hundred and fifty people were moderately injured; and 3 the Maspero Massacre which saw twentyseven Christians mowed down by army vehicles and countless injured during what was supposed to be a peaceful political protest regarding the rights and treatment of Coptic Christians in the post-Mubarak era.69 In a majority of these incidents, particularly those since the ousting of Mubarak, the per petrators have not been prosecuted.70 What is worse is that in some cases the Coptic victims have been compelled by authorities to retract their complaints and enter into “reconciliation” with the attackers, in order to preserve “National Unity”71. This continued failure by the government to prevent these assaults on Coptic Christians by non-state actors and to hold the perpetrators accountable contributes to a climate of “impunity” which encourages further attacks.72 Article 2(3) of the ICCPR requires the state to redress the violation of religious human rights through the implementation of an “effective remedy”. Thus, as Egypt has ratified the ICCPR it has an affirmative obligation to enact legislative measures to protect the religious human rights of the Christian minority in Egypt from the persecution of non state actors.73 Throughout Egypt’s history, in particular in recent times, Coptic Christians have been publicly encouraged to convert to Islam. In fact
the “entire state is mobilized to facilitate the conversion procedures”,74 which include “organised, and well-dissimulated groups” that target young Coptic girls and women.75 In contrast, under the Sharia law of ‘apostasy’, any Muslim who repudiates his or her faith “is guilty of a capital offense punishable by death”.76 This is justified within Egypt as any conversion away from Islam is considered “treason” under Sharia law.77 Thus, several Muslims who have converted to Christianity have faced “despicable treatment by the authorities”,78 and under this system of Sharia law “honour killings” are condoned. Through honour killings, Muslim men and in particular Muslim women, who have converted away from Islam, may be “burned alive”79 or murdered through other means. Although “honour killings” appear to be archaic and incompatible with the “renewed” demo cratic Egypt, the current Salafist political party, AlNour during the political elections has frequently advocated the legitimacy of honour killings.
4. When gender inequality is justified in accordance with law Despite the equal participation by women in the Egyptian revolutions which ousted Hosni Mu barak, the election of the Muslim Brotherhood’s presidential candidate, Moham mad Morsi is believed to have contributed to a dismal turn in women’s rights in Egypt.80 The declining state of women’s rights is best illustrated by the fact that since the collapse of the Mubarak regime, the number of female members in parliament has fallen from sixty-four to a mere nine, whereby the only female presidential candidate, Bothaina Kamel was forced to withdraw from the election as she failed to gain enough signatories to register for the candidacy. Although Egypt was one of the very few Muslim countries to ratify the Convention on the Elim ination of All Forms of Discrimination Against Women of 1979, it entered a reservation to Article 16 of the Convention, which provides for the equality of men and women in all matters relating to marriage and family relations, during the marriage and upon its dissolution. The Egyptian reservation specifically stated that Court of Conscience | 47
engaged in barbaric acts by conducting “virginity tests” on female activists.
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––––––––– … the military
cultural relativism. Although the western model which separates “church and state” or in this case “mosque and state” would be ideal, it appears that under the current government this is not viable. Thus although the revolution
ReferenceS 1 Donna E. Arzt, ‘The application of
Egypt’ (2006) 10 Middle East
Islamic states’, (1990) 12 Human
Review of International Affairs 3, 92.
Under traditional Islamic Law women are considered the wards of men and are legally disqualified from holding general political or judicial office.83 This has been frequently cited by the conservative Salafist Al-Nour party who have openly stated that women are forbidden from being present in the public sector. Sharia law also upholds the archaic ideal that men have the “right” to punish women for “diso bedience” or behaviour which contra venes Islamic principles.84 Many Islamic scholars and leaders have also sought to strengthen the Islamic foundations of the practice of female circumcision (mutilation) in Egypt. Some have called upon custom as a source of Islamic law, claiming that “female circumcision is a part of the legal body of Islam and is a laudable practice that does honor [sic] to the women”85 The West considers this prac tice barbaric, cruel and inhumane, and deems it a clear violation of human rights.[86] The idea behind the practice is to reduce the woman’s sexual appetite by excising the clitoris. As a girl’s virginity is highly valued by Islamic tra dition, the purpose of circumcision is to protect her against any possible violation of her chastity.87 This perverted view of a woman’s 48 | Court of Conscience
In addition, since the election of President Mohamed Morsi there has been a surge in violent sexual attacks against women and particular harassment against women who do not wear the Islamic head cover.88 This trend could be directly correlated with the pressure placed upon the Muslim Brotherhood, by Islamist conservatives, who believe that Sharia law should be strictly observed, and that women should conform to strict rules relating to dress and clothing.
5. A future for human rights in Egypt? Although the Egyptian Revolution appeared to promise a future of democracy, equality and human rights, the imposition of Sharia law by the predominantly Islamist government led by Mohammad Morsi will significantly compro mise the attainment of these goals. Despite having ratified several international human rights instruments, it is clear that some basic human rights will be threatened by the insti tution of Sharia law as Egypt’s governing law, as these human rights will be systematically superseded by Sharia law on the basis of
38 Ibid, 1066. 39 For example see: ‘In a Time of Torture: The Assault on Justice in
12 Ibid.
Egypt’s Crackdown on
13 Arzt, above n 1, 224.
Homosexual Conduct’, Human
Egypt are watching and worrying’,
14 Guindy, above n 11, 92.
Rights Watch (online), 29 February
Inisghts (online), 26 July 2012
15 Shahine, above n4.
2004 http://www.hrw.org/en/
http://www.philly.com/philly/
16 An-Na’im, above n9, 13.
columnists/trudy_rubin/20120726_
17 Ibid, 17.
40 An-Na’im, above n9, 21.
Worldview__Copts_in_Egypt_are_
18 Ibid, 21.
41 Mayer, above n27, 309-310.
watching_and_worrying.html.
19 Guindy, above n11, 94-95.
42 An-Na’im, above n5, 5.
3 Ibid.
20 Ibid, 99.
43 Arzt, above n1, 155.
4 Gihan Shahine, ‘Who’s afraid of
21 An-Na’im, above n9, 17.
44 Saad Eddin Ibrahim, Marilyn R. I.
2 Trudy Rubin, ‘Worldview: Copts in
autonomy was clearly displayed during the revolution when the military engaged in barbaric acts by conducting “virginity tests” on female activists. The failure of the army leadership and current government in holding perpetrators accountable for this gross violation of human rights is evident by the fact that no one has been convicted for this incident and the only doctor charged was acquitted in March 2012.
11 Adel Guindy, ‘The Islamization of
international human rights law in Rights Quarterly, 223-224.
since these matters were governed by Sharia, Egypt had to derogate from its obligations under the Convention.81 In this regard they stated, “The Arab Republic of Egypt is willing to comply with the content of this [instrument], provided that such compliance does not run counter to the Islamic Sharia”.82
managed to over throw an autocratic regime and dictator, it fell short in terms of bringing about true democracy and for now, the human rights of many Egyptian minority groups remain threatened and uncertain.
reports/2004/02/29/time-torture.
Islamist rule?’,
22 Ibid, 21.
Tadros, Mohammed Anwar El-Fiki
Al-Ahram online (online), 30 June-
23 Tamir Moustafa and Asifa
and Soliman Shafik Soliman, ‘The
6 July 2011
Quraishi-Landes, ‘Paradoxes of
Copts of Egypt’, Minority Rights
http://weekly.ahram.org.
“Religious Freedom” in Egypt’,
Group (online), January 1996
eg/2011/1054/focus.htm.
Jadaliyya (online), 16
<http://www.unhcr.org/refworld/
5 Abdullahi Ahmed An-Na’im,
April 2012 http://www.jadaliyya.
pdfid/469cbf8ed.pdf>.
‘Religious Minorities under Islamic
com/pages/index/5103/
45 Arzt, above n1, 155.
Law and the Limits of Cultural
paradoxes-of-religious-freedom-
46 Ibrahim, Tadros, El-Fiki and
Relativism’, (1987) 9 Human Rights Quarterly, 11.
in-egypt.
Soliman, above n44.
24 Ibid.
47 Brown, above n7, 1054.
6 Ibid, 6.
25 Ibid.
48 Paul Sedra, ‘Class cleavages and
7 Scott Kent Brown II, ‘The Coptic
26 An-Na’im, above n9, 16.
ethnic conflict: Coptic Christian
27 Ann Elizabeth Mayer, ‘Universal
communities in modern Egyptian
Church in Egypt: A Comment on Protecting
Versus Islamic Human Rights: A
Religious Minorities from Nonstate
Clash of Cultures or a Clash with a
Discrimination’ (2000) Brigham
Construct?’ (1994) 15 Michigan
49 Brown, above n7, 1054.
Journal of International Law, 322.
50 An-Na’im, above n5, 1.
Young University Law Review, 1066.
politics’, (1999) 10 Islam and Christian-Muslim Relations 2, 223.
28 Ibid, 309-310.
51 Brown, above n7, 1080.
8 Ibid.
29 Ibid, 322.
52 US State Department, ‘2009 Coun
9 Abdullahi Ahmed An-Na’im,
30 Samuel P. Huntington cited in Ibid,
‘Human Rights in the Muslim
309-310.
try Reports on Human Rights Prac tices: Egypt’, Bureau of Democracy,
World: Socio-Political Conditions
31 Ibid, 322.
Human Rights and Labour (online),
and Scriptural Imperatives: A
32 Ibid, 402.
11 March 2010 http://www.state.
Preliminary Inquiry’ (1990) Harvard
33 Ibid, 322.
gov/g/drl/rls/hrrpt/2009/
Human Rights Journal 3, 21.
34 Ibid.
10 Article 40 of the Egyptian
nea/136067.htm.
35 Ibid, 324-325.
53 Arzt, above n1, 209.
Constitution cited in Arzt, above
36 Ibid, 327-328.
54 James Heiser, ‘Egyptian Islamists
n1, 223-224.
37 Brown, above n7, 1064-1065.
Seek Overthrow of Coptic
Court of Conscience | 49
Governor’ New American (online),
slaughtered-in-egypt-as-the-
20 April 2011 http://www.
world-looks-away/story-
Islamic Rights versus Cultural
thenewamerican.com/world-
e6frg6zo-1226056354274.
Practice’(2004) 51 Sex Roles 5-6,
mainmenu-26/africa-mainmenu-
70 Ibid.
27/7188-egyptian-islamists-seek-
71 Guindy, above n11, 99.
87 Ibid.
overthrown-of-coptic-governor.
72 US State Department, above n52.
88 Ghitis, above n80.
above n11, 95.
73 Brown, above n7, 1073-1074. 74 Guindy, above n11, 99.
56 US State Department, above n52.
75 Ibid.
57 Guindy, above n11, 99.
76 An-Na’im, above n9, 23.
58 “The right of peaceful assembly
77 Zeidan, above n61, 58.
shall be recognized. No restrictions
78 Guindy, above n11, 99.
may be placed on the exercise of
79 Michael Ignatieff, ‘The Attack on
this right other than those imposed
Human Rights’ (2001) 80 Foreign
in conformity with the law and
Affairs 6, 111.
which are necessary in a
Women’s Equality in Egypt’, Coptic
of national security or public safety,
Solidarity (online), 13 July 2012
public order, the protection of
http://www.copticsolidarity.org/
public health or morals or the
media-news-events/news/697-
protection of the rights and
the-battle-for-women-s-equality-
the International Convention on Civil and Political Rights (ICCPR) 1976].
in-egypt. 81 Abdullahi Ahmed An-Na’im, above n9, 41.
59 Brown, above n7, 1087.
82 Michele Brandt and Jeffrey A.
60 Guindy, above n11, 98.
Kaplan, ‘The Tension between
61 David Zeidan, ‘The Copts- equal,
Women’s Rights and Religious
protected or persecuted? The
Rights: Reservations to CEDAW by
impact of Islamization on Muslim-
Egypt, Bangladesh and Tunisia’
Christian relations in modern
(1996) 12 Journal of Law and
Egypt’ (1999) 10 Islam and
Religion, 119.
Christian-Muslim Relations 1, 57. 62 US State Department, above n52.
83 Arzt, above n1, 208. 84 Fatma Khafagy, ‘Violence against
63 Zeidan, above n61, 57.
women: Good practices in
64 Brown, above n7, 1087.
combating and eliminating
65 Zeidan, above n61, 57.
violence against women: Honour
66 An-Na’im, above n9, 25.
Killing in Egypt’, United Nations
67 Guindy, above n11, 98.
Division for the Advancement of
68 Rania Abouzeid, ‘After the
Women in collaboration with
Egyptian Revolution: The Wars of
United Nations Office on Drugs
Religion’, Time (online), 10 March
and Crime (online) 17 May – 20
2011 http://www.time.com/time/
May 2005 http://www.un.org/
world/article/0,8599,2058032,00.
womenwatch/daw/egm/vaw-
html#ixzz1NyYlYOAT.
gp-2005/docs/experts/khafagy.
69 Micah Halpern, ‘Coptic Christians slaughtered in Egypt as the world
honorcrimes.pdf. 85 Kathryn M. Yount, ‘Symbolic
looks away’, The Australian (online)
Gender Politics, Religious Group
16 May 2011, http://www.
Identity and the Decline in Fenal
theaustralian.com.au/news/
Genital cutting Minya, Egypt’
opinion/coptic-christians-
(2004) 82 Social Forces 3, 1068.
50 | Court of Conscience
Achieving Public Law Goals through Private Law Means: Is This Social Justice?
80 Frida Ghitis, ‘The Battle for
democratic society in the interests
freedoms of others” (Article 21) in
279.
http://www.flickr.com/photos/gregthebusker/3541602858/
55 Lafif Lakhdar quoted in Guindy,
Greg Weeks1
86 Madiha El-Safty, ‘Women in Egypt:
Court of Conscience | 51
I INTRODUCTION
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.3 In some ways, to hold this view as being entire of itself is simplistic:4 there is, for exam ple, doubtless a social justice aspect to challenges run on behalf of asylum seekers, who have limited opportunities to challenge administrative action for themselves.5 However, in broad terms, this is a restriction under which judicial review in Australia necessarily labours, due to the separation of powers and the procedural nature of the judicial remedies which are each entrenched in our Constitution.6 It is implicit in Brennan J’s remarks in Quin that a court applying judicial review remedies must do no more than ‘to say what the law is’.7 Axiomatically, the remedies do not give a substantive result8 to a successful applicant, 52 | Court of Conscience
http://www.flickr.com/photos/takver/5581806140/
Australian administrative lawyers aren’t fre quently called upon to address their minds to the issue of social justice. With the partial exception of the two jurisdictions which have statutory human rights protections,2 and to the extent that administrative tribunals are able to reach the ‘correct or preferable decision’ on the merits within the constraints of legislation, the concept of justice has an almost entirely procedural meaning in administrative law. Furthermore, it is rarely thought of as having an overtly social component. In one of the most frequently quoted statements about the nature and limitations of judicial review, Brennan J said:
––––––––– … there is,
for example, doubtless a social justice aspect to challenges run on behalf of asylum seekers, who have limited opportunities to challenge administrative action for themselves.5
but in general merely a remedy which removes or prevents invalidity and clears the way for another decision to be made according to law. It is not possible under the current orthodoxy for a party to obtain a monetary remedy in public law litigation;9 public law remedies are restricted to compelling the performance of an unper formed public duty (mandamus), quashing an invalid decision (certiorari), declaring the law (declaration) and preventing the commencement or contin uation of an invalid (prohibition) or unlaw ful (injunction) action. The ways in which an applicant is able to work around these public law limitations through private law mechanisms are few. I propose to examine three which can work and one which can’t.
II TORT LIABILITY OF PUBLIC AUTHORITIES SOUNDING IN DAMAGES Public authorities can be held liable in tort; this is an obvious statement, but misleadingly so. Traditionally, the English monarch was immune from suit but was able to consent to a suit being brought personally against the Crown.10 Indeed, the monarch’s consent was determined as a matter of law and not subject to regal whim and this was the origin of the maxim ‘the King can do no wrong’. Over time, however, the original meaning was lost and a series of judgments through the 19th century11 came to interpret the maxim as conferring immunity from suit on the monarch.12 The misapplication of the common law doctrine of Crown immunity was not redressed until well into the 20th century.13 Australia had, however, removed the Crown’s specially protected position by statute under a series of Australian Crown Proceedings Acts14 from the 1850s.15 The legislation required that suits between a private individual and the Crown be conducted on the ‘same’ basis as in suits between private individuals. Following Federation, this language was replicated at Commonwealth level with the result that
the Commonwealth was ‘in the same position as the colonies had been prior to Federation’.16 The relevant provision of the Judiciary Act reads: ‘in any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.’17 Most current Australian iterations of Crown proceedings legislation continue to qualify the proposition that governments are to be liable to subjects in tort in the same way as in any action between two subjects by stating that suits between individuals and government are to be conducted ‘as nearly as possible’ on the same basis as between two individuals.18 This qualification recognises implicitly that governments cannot be dealt with on exactly the ‘same’ basis as private individuals and that their responsibilities do make them different to individuals in some important senses. As Gleeson CJ noted in Graham Barclay Oysters Pty Ltd v Ryan, the qualification ‘as nearly as possible’ is an ‘aspiration’ that cannot be realised completely.19 The equality principle has generally been considered orthodox since it was expressed by AV Dicey, but is nonetheless subject to the reality described by Gleeson CJ, which affects the extent of governments’ liability in tort.20 As a result, where public authorities are held to a lesser standard than private individuals, it is now usually a matter dealt with legislatively in Australia.21 The real difficulties lie where there is an argu ment that public authorities should be held to some greater standard. Over the course of the last forty years,22 courts have held that public authorities may in some circumstances have a common law duty to perform a positive act in order to prevent loss or damage to an indi vidual. This is because public authorities, by their very nature, have a greater level of responsibility than a private actor in the same circumstances and ought sometimes to take Court of Conscience | 53
––––––––– There is no prima facie reason why
equitable remedies should not be available against public authorities but difficulties arise because private law remedies are inapt to certain functions of government. positive action to exercise that responsibility. Mark Aronson has noted that:23 the starting point in most cases involving government defendants is to ask why their status should entitle them to any special dispensation. In other words, the govern ment’s civil liability should be judged by the same standards that govern private sector defendants. It is commonplace, however, that people expect positive action from government that they would not demand of a private person or firm,24 and some of the leading negligence cases have tried to turn that expectation into a common law duty. In other words, there is more than one sense in which public authorities and private actors are not ‘the same’. The legislative qualification that public and private actors shall be treated ‘as nearly as possible … the same’ is generally seen as recognising that the liability of public authorities may properly be less than that of private actors in some circumstances, due to the greater demands under which they operate. Crennan and Kiefel JJ commenced their analysis in Stuart with the converse proposition, that more might sometimes be expected of public authorities where they have a capacity to prevent harm which is not possessed by individuals.25 This is, however, not a position that has yet found majority support in the High Court. 54 | Court of Conscience
III EQUITABLE LIABILITY OF PUBLIC AUTHORITIES SOUNDING IN COMPENSATION There is an interesting interaction between equity and administrative law, which is often overlooked.26 In regard to equity’s application to decision-making by public authorities, the issues are much the same as in regard to tort liability. There is no prima facie reason why equitable remedies should not be available against public authorities but difficulties arise because private law remedies are inapt to certain functions of government. A prominent example is that there is no specific doctrine of public law estoppel,27 and the development of any such doctrine in Australia is unlikely,28 even if not wholly excluded.29 While equity is capable of raising an estoppel to create a cause of action where an individual is misled to his or her detriment by a government entity,30 the fact that public authorities are not truly the same as private individuals means that consideration must be given to the impact of enforcing a promise to an individual on the public at large. Public authorities ‘cannot fetter the performance of their duties by contract or estoppel or, without statutory authority, bind themselves to perform them in a particular way’.31 In this respect, the issues mirror those which limit the availability of liability in tort for the otherwise negligent acts of public authorities.
I have argued elsewhere there is need for an equitable remedy where an individual reasonably relies to his or her detriment on a representation (such as a soft law instrument) made by a public authority.32 The fact that an estoppel raised in such circumstances cannot be enforced if the public authority would thereby be compelled to act ultra vires does not contradict this argument.33 There is scope for equitable compensation to be paid even in circumstances where an estoppel has been raised but cannot be enforced, such as where the estoppel is raised by a public authority. Others have argued that, given the scope to obtain damages for government misrepresen tations in tort, there is no need to stretch equity to provide a monetary remedy.34 There is, however, a difference between extending equity to provide a remedy hitherto unavailable and recognising a remedy known to equity but fallen into disuse, such as equitable compensation. Different remedies being available in equity and at law does not necessarily result in an anomaly requiring remedial action by the courts or legislature.35 The facts that equitable compen sation has fallen into disuse and has thereby created an anomaly because remedies of similar (but not identical) scope have become, relatively recently, available at law does not alter the desirability of that remedy to fill a legal lacuna. Renewing the recognition that equity has the capacity to award compensation for breach of an equitable duty would be a significant improvement to the state of the law.
IV RESTITUTION FROM PUBLIC AUTHORITIES FOR UNJUST ENRICHMENT In the ground-breaking Woolwich litigation,36 the House of Lords was asked to consider a situation in which the tax liabilities of building societies, in as much as they were affected by tax deductions and interest paid to members, were not covered by the applicable tax legislation but were rather the subject of nonstatutory arrangements between the Revenue
authority and individual building societies. The Revenue had power under legislation to change the mechanism by which it collected income tax on deposits into building societies, but this power was explicitly not to be used for the purpose of raising additional tax revenue. The Revenue issued soft law guidelines designed to indicate how it would exercise its powers. When implemented, these guidelines had the effect of collecting an amount of taxation in excess of that payable under the usual arrangements in order to prevent the building societies from receiving a windfall. The Woolwich Equitable Building Society concluded that the Revenue’s proposed collection of tax would be ultra vires but that it would pay anyway, in order to dispel any belief in the marketplace that it could not, and would later attempt to recover from the Revenue both the sum paid37 and interest on that sum. Woolwich decided for the first time that ‘an ultra vires exaction or demand by a public authority was itself a ground for restitution’.38 The House of Lords, by a bare majority, adopted reasoning39 that held in essence, because ultra vires de mands are inconsistent with Article 4 of the Bill of Rights 1688,40 they are therefore sufficient to create a public law ground for restitution, in a special category of its own. The extent to which the Woolwich principle applies in Australia is, however, yet to be resolved.41 As Williams has noted, the issue which arose in Woolwich had features which properly inhabited opposite sides of the ‘Diceyan orthodoxy’,42 namely that the validity of the tax was a public law question43 but the recovery of money paid to the Revenue as a result of an invalid tax was an issue for private law.44 This ought not to be of undue concern in deciding whether to adopt Woolwich in Australia; after all, recovering tort damages from public authorities is com monplace. Furthermore, as Lord Goff pointed out in Woolwich, ‘it is well established that, if the Crown pays money out of the consolidated fund without authority, such money is ipso facto recoverable’,45 under the Auckland Harbour principle.46 Why then should the reverse not be true, allowing individuals to recover payments Court of Conscience | 55
http://www.flickr.com/photos/citizensheep/3613179465/
unreviewable as a matter of administrative law.53 When public authorities enter into contracts, they are not doing anything that a private party could not do.54 Consequently, both at common law55 and under statutory judicial review schemes,56 a public authority’s contractual dealings are considered to be entirely of a private law nature. While there is limited57 scope for public law supervision of contractual relationships, they are generally beyond the reach of judicial review and are likely to remain so in the absence of statutory reforms.58
References 1 * Faculty of Law, UNSW. 2 Charter of Human Rights and Resposibilities Act 2006 (Vic); Human Rights Act 2004 (ACT). 3 Attorney-General (NSW) v Quin (1990) 170 CLR 1,35–6 (Brennan J) (emphasis added) (‘Quin’). 4 Professor Aronson has politely doubted Brennan J’s sincerity in this regard, noting that ‘it was abundantly clear to every observer that his Honour was profoundly concerned to avoid ‘administrative injustice’. Whilst he said that its avoidance was a mere by-product of the implementation of legislative will, it was nevertheless a by-product that his Honour’s judgments happily produced with remarkable consistency’: Mark Aronson,
––––––––– Social justice is
not well served by administrative law where it is focused on procedure rather than substance. made to government pur suant to ultra vires demands?47 His Lordship was compelled to conclude that the comparison between the position of the Crown and the position of the citizen ‘on the law as it stands at present is most unattractive’.48 Even a passing familiarity with public law is enough to allow a person to conclude that the mere fact of an ‘unattractively’ disparate position of individuals vis-à-vis the Crown has never of itself been sufficient to cause the law to be changed,49 and there are plenty of situations in which the government is treated preferentially to members of the public. None theless, consider again the situation where money is paid to a revenue collection authority, which is acting bona fide, and where the payer 56 | Court of Conscience
does not believe that the money is payable but nonetheless pays it in order that others do not think it incapable of paying. This is not a situation which is caused by the Revenue’s misuse of its power per se but by the very fact of that power. This reasoning has been adopted at the highest levels of the judiciary in a number of countries since Woolwich,50 but it is yet to be examined by the High Court of Australia.51
V WHY THERE CAN BE NO CONTRACTUAL DAMAGES IN PUBLIC LAW A contract is perhaps the quintessential private law arrangement,52 and for that reason decisions made under contract are generally
This is, of course, an imperfect approach to the issue of government contracting,59 which presumes a bright line distinguishing ‘public law’ from ‘private law’.60 There is increasingly a recognition that the power held by public authorities as if on trust for the public cannot be wholly indifferent to the public interest even when contracting.61 Private parties to contracts are, by contrast, able in general62 to act with utter self-interest in exercising powers under the contract.63 The suitability of that approach by public authorities must be open to question, just as it is not the case that public authorities are wholly absolved from going to the rescue of another party in need as private individuals are.
‘Process, Quality, and Variable Standards: Responding to an Agent Provocateur’ in David Dyzenhaus, Murray Hunt and Grant Huscroft (eds), A Simple Common Lawyer: Essays in Honour of Michael Taggart (Hart, 2009) 5, 21 (original emphasis). See, eg, Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (‘The Malaysia Solution Case’). 5 Cf Michael Taggart, ‘”Australian Exceptionalism” in Judicial Review’ (2008) 36 Federal Law Review 1. 6 Marbury v Madison, (1803) 5 US 87, 111 (Marshall CJ). 7 While this remains true in Australia, the law in the UK has moved past this limitation in recent years; see, eg, E v Secretary of State for the Home Department [2004] 2 WLR 1351; R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330; R v North and East Devon
The reason why there will be resistance until the very end to judicial supervision of govern ment contracting is that contracts are still seen as being entirely private. Compare this to the acceptance that public authorities and private individuals cannot be treated absolutely ‘the same’ in regard to tort liability, equitable liability or restitution for unjust enrichment.
Health Authority; Ex parte Coughlan [2001] 3 QB 213. 8 See Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100,112 (Beazley J); Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637 (‘Park v MIEA’). 9 The procedural requirement for suing the Crown by name was therefore to bring a petition of right. If the Chancellor, having made inquiries as to the facts of the case, concluded that the plaintiff had a ‘right’ against
VI CONCLUSION
the Crown in fact, the petition would be endorsed with the King’s fiat, ‘let right be done’. This process was
Social justice is not well served by adminis trative law where it is focused on procedure rather than substance. Equally, private law provides limited and generally unsatisfying ‘work arounds’ where judicial review will not go. To the extent that merits review does not reach, social justice will only truly be served once there is extensive legislative or, less likely, judicial reform.
ultimately simplified by the passage of the Petitions of Right Act 1860, 23 & 24 Vict, c 34. See Mulcahy v Ministry of Defence [1996] QB 732, 740 (Neill LJ). 10 See, eg, Tobin v The Queen (1864) 16 CB (NS) 310. Ultimately, petitions of right were used to enforce rights against the Crown for breach of contract: Thomas v The Queen (1874) LR 10 QB 31. However, while the procedural expedient of a petition of right allowed an individual to seek legal redress against the Crown, it was
Court of Conscience | 57
held not to do so for torts committed by Crown servants: Feather v The Queen (1865) 6 B&S 257. 11 Louis L Jaffe, ‘Suits against Governments and Officers:
18 (2002) 211 CLR 540, 556 (‘Graham Barclay Oysters’). His Honour was discussing the New South Wales legislation: Crown Proceedings Act 1988 (NSW) s 5.
37 Andrew Burrows, The Law of Restitution (Oxford University Press, 3rd ed, 2011) 498. 38 Developed in Peter Birks, An Introduction to the Law of
49 See, eg, Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3. 50 Cf Roxborough v Rothmans of Pall Mall Australia Ltd
19 Ibid 556 (Gleeson CJ).
Restitution (Oxford University Press, revised ed, 1989)
3–4 (footnotes omitted). See also Stephen Gageler,
20 See, eg, Civil Liability Act 2002 (NSW) Pt 5.
294–9; Peter Birks, ‘Restitution from the Executive: A
‘Administrative Law Judicial Remedies’ in Matthew
21 Since Home Office v Dorset Yacht Co Ltd [1970] AC
Tercentenary Footnote to the Bill of Rights’ in PD Finn
(provoking some hilarity) to a class of administrative law
(ed), Essays on Restitution (Law Book, 1990) 164, 165.
students that ‘a contract is the most private
Sovereign Immunity’ (1963) 77 Harvard Law Review 1,
Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 368, 369. 12 In Australia, several respected sources had concurred with earlier authority that the understanding that the sovereign had a common law ‘immunity‘ from suit is misconceived; see, eg, Sydney Harbour Trust Commissioners v Ryan (1911) 13 CLR 358, 365 (Griffith CJ) (‘SHTC v Ryan’). The issue was ultimately settled in Mewett, where it was held that the immunity was
1004 and, particularly, Anns v Merton Borough Council [1978] AC 728 (‘Anns’).
39 ‘That levying Money for or to the Use of the Crowne by
(2001) 208 CLR 516. 51 Compare this to the recent misstatement I made
arrangement that two parties can have’. It seems that
22 Aronson, above n 14, 68 (original footnote). See also
pretence of Prerogative without Grant of Parlyament for
Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 259
longer time or in other manner than the same is or shall
[129] (Crennan & Kiefel JJ).
be granted is Illegal’: Bill of Rights 1688 (UK) Art 4. This
52 See Mark Aronson, Bruce Dyer and Matthew Groves,
was described as a ‘fundamental principle of public law’
Judicial Review of Administrative Action (Thomson
in Commissioner of State Revenue (Vic) v Royal Insurance
Reuters, 4th ed, 2009) 146; Griffith University v Tang
23 See, eg, Graham Barclay Oysters (2002) 211 CLR 540, 553 (Gleeson CJ). 24 Stuart v Kirkland-Veenstra (2009) 237 CLR 215, 257 [123] (Crennan & Kiefel JJ). 25 See JJ Spigelman, ‘The Equitable Origins of the
Australia Ltd (1994) 182 CLR 51, 69 (Mason CJ).
they were able to think of at least one arrangement more private.
(2005) 221 CLR 99 (‘Tang’).
40 See Keith Mason, JW Carter and Greg Tolhurst, Mason
53 New South Wales v Bardolph (1934) 52 CLR 455.
and Carter’s Restitution Law in Australia (LexisNexis,
54 General Newspapers Pty Ltd v Telstra Corporation
Improper Purpose Ground’ in Linda Pearson, Carol
2nd ed, 2008) Ch 20; Tania Voon, ‘Restitution from
v Mewett (1997) 191 CLR 471, 502 (Dawson J); 513
Harlow and Michael Taggart (eds), Administrative Law in
Government in Australia: Woolwich and its Necessary
55 Tang (2005) 221 CLR 99.
(Toohey J); 532 (McHugh J); 550–1 (Gummow &
a Changing State: Essays in Honour of Mark Aronson
Boundaries’ (1998) 9 Public Law Review 15; Derek
56 See, eg, Ombudsman Act 1976 (Cth) ss 3(4B), 3BA.
(Hart, 2008) 147.
Wong, ‘The High Court and the Woolwich Principle:
57 Matthew Groves, ‘Outsourcing and s 75(v) of the
procedural rather than substantive: Commonwealth
Kirby JJ). 13 The current state and territory legislation is: Crown Proceedings Act 1993 (NT); Crown Proceedings Act 1993 (Tas); Crown Proceedings Act 1992 (SA); Crown
26 Annetts v McCann (1990) 170 CLR 596, 605 (Brennan J).
Adoption or Another Bullet that Cannot be Bitten?’
27 The public law equivalent, the doctrine of substantive
(2011) 85 Australian Law Journal 597. Cf the pessimism
legitimate expectations, has been forcefully rejected by
Proceedings Act 1992 (ACT); Crown Proceedings Act
the High Court in Re Minister for Immigration and
1988 (NSW); Crown Proceedings Act 1980 (Qld); Crown
Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1.
Proceedings Act 1958 (Vic); Crown Suits Act 1947 (WA). 14 The first Crown Proceedings Act was passed in South Australia in 1853, followed by New South Wales and Queensland. For a brief overview of this early legislation,
28 Quin (1990) 170 CLR 1 (Mason CJ); Minister for
in Burrows, above n 36, 35–43. 41 Rebecca Williams, Unjust Enrichment and Public Law: a Comparative Study of England, France and the EU (Hart, 2010) 21. The die-hard Diceyan may respond that
Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR
Woolwich treated the government party equally by aligning
193 (Gummow J) (‘Kurtovic’).
the law with Auckland Harbour Board v The Queen [1924]
29 Commonwealth v Verwayen (1990) 170 CLR 394. As
AC 318, (‘Auckland Harbour’). Cf Burrows’ claim
(1993) 45 FCR 164 (‘General Newspapers’).
Constitution’ (2011) 22 Public Law Review 3. 58 See Nicholas Seddon, Government Contracts: Federal, State and Local (Federation Press, 4th ed, 2009) Ch 8. 59 Cf Carol Harlow, ‘”Public” and “Private” Law: Definition without Distinction’ (1980) 43 Modern Law Review 241. 60 See NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 290 [27] (Gleeson CJ). 61 Cf Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234.
see Mark Aronson, ‘Government Liability in Negligence’
with liability in tort, this occurs on the same basis as an
(articulated prior to Woolwich) that ‘the ultra vires theory
(2008) 32 Melbourne University Law Review 44, 44;
estoppel against any other party, subject to some
contradicts … the whole Diceyan tradition of English law
CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51, 64 [11]
additional considerations peculiar to public authorities:
whereby the law of obligations is basically applied equally
(Gleeson CJ).
Kurtovic (1990) 21 FCR 193, 208 (Gummow J).
to all defendants’: Andrew Burrows, ‘Public Authorities,
Mark Leeming, ‘The Liability of the Government under the Constitution’ (1998) 17 Australian Bar Review 215, 217–19; Nick Seddon, ‘The Crown’ (2000) 28 Federal Law Review 245, 257. 15 Baume v Commonwealth (1906) 4 CLR 97; Leeming, above n 14, 221. 16 Judiciary Act 1903 (Cth) s 64 (emphasis added). 17 This form of words is not precisely consistent across every Australian jurisdiction; the New South Wales, Queensland and Victorian legislation each uses the words ‘as nearly as possible’, as does s 64 of the
30 KR Handley, Estoppel by Conduct and Election (Sweet & Maxwell, 2006) 22 (citation omitted). 31 See Greg Weeks, ‘Estoppel and Public Authorities: Examining the Case for an Equitable Remedy’ (2010) 4 Journal of Equity 247. 32 Handley, above n 29, 22–3; Kurtovic (1990) 21 FCR 193, 211–16. 33 ‘Common law developments in negligence have substantially replaced the need for a revival of [equitable]
Ultra Vires and Restitution’ in AS Burrows (ed), Essays on the Law of Restitution (1991) 39, 62. 42 Decided ultimately in R v Inland Revenue Commissioners; Ex parte Woolwich Equitable Building Society [1990] 1 WLR 1400. 43 Williams, above n 40, 16. 44 Woolwich [1993] AC 70, 177 (Lord Goff of Chieveley). 45 Auckland Harbour [1924] AC 318. See Williams, above n 40, 56 ff.
Judiciary Act 1903 (Cth), but these qualifying words are
compensation’: Ian E Davidson, ‘The Equitable Remedy
46 See Voon, above n 39, 18.
not found in the relevant sections of the legislation in the
of Compensation’ (1982) 13 Melbourne University Law
47 Woolwich [1993] AC 70, 177 (Lord Goff of Chieveley).
other Australian jurisdictions. However, the effect of the
Review 349, 350.
48 Indeed, even within private law, there is nothing
respective sections is the same in each jurisdiction regardless of whether the same formulation of words is used because the ‘qualification flows not from statute but from substantive principles of the common law’: Aronson, above n 14, 45.
58 | Court of Conscience
34 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, 404 (Heydon JA). 35 Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (‘Woolwich’). 36 In Woolwich, this was almost £57 million.
62 Australian Competition and Consumer Commission v
iniquitous about an imbalance of power unless it is taken advantage of in an unconscientious fashion. See, eg, Blomley v Ryan (1956) 99 CLR 362; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. Cf Burrows, above n 36, 306–7.
Court of Conscience | 59
Jacqueline Fetchet
Unrighteous Transit Lines Migrant vulnerability, human rights and institutionalized corruption along Mexico’s southern border
image: http://www.flickr.com/photos/misterpain/
I
60 | Court of Conscience
t is night-time, a star-painted sky brushed from horizon to horizon across this flattened and empty, desert landscape. Huddled like bruised mangoes in the fruit markets they left behind, together they sit atop this cold, clunky train that rattles through the eternal sea of cactus that surrounds them. A girl clutches the leg of her father who strokes her black hair, his eyes wide and weary. A woman is crouched around two young boys, travelling in search of her husband. There are hundreds of them on this train, ‘La Bestia (The Beast)’ it is called, leading them to a destination they have dreamt of, on a journey that could only be described as nightmarish. This path of uncertainty, treacherously travelled by tens of thousands each year, takes them from the wilds of Central America, where gangs, poverty and corruption are fled, in hopes of arriving in the United States, where jobs, security and prosperity are sought. First, they must pass through Mexico, contending with cartels, corrupt au thorities and criminals that threaten their survival. Their future is unknown, the journey the most treacherous part.
Court of Conscience | 61
Migration and human relocation is perhaps one of the greatest social and political phenomenons of our time, encapsulating globalisation in its most profound human manifestation. The move ment and flow of peoples around the world is driven by countless motivations – whether chosen or forced – and is redefining concepts of nation-state, citizenship, identity and culture. Further, the transnational nature of migration has meant laws between states vary in their approach to accepting, rejecting or ‘processing’ of foreigners, whether they seek asylum, work or residency. The system becomes complicated when compliance with international accords and treaties fails to be met and states choose not to apply laws from conventions that they have ratified. Whilst Australia is currently dealing with its highly politicized and controversial refugee and asylum seeker policy, Mexico – a nation geographically primed for dealing with large scale movements of migrants – is negotiating its own attempts to recognize, process and legally accommodate for human transition between its borders. In response to harsh criticisms internationally and domestically towards the treatment of Cen t ral American migrants crossing the southern border, Mexico’s then-President Felipe Calderón passed a progressive law recognizing refugee ‘good practices’1 that would allow access to services such as health, education and employment whilst in Mexican territories. Although initially endorsed and supported by human rights organizations and the international community, more than 12 months after the law came into force, and with a new government recently elected, its implementation in practice must be examined and the notion of ‘good practice’ re-evaluated as migrants and refugees remain vulnerable. Amidst the increasingly tumultuous political environment that is Mexico in 2012, Central Americans continue flooding north, although the assurance of their rights seems to have taken a back seat to electoral corruption, drug cartels and the unrestrained violence that currently engulfs the country. The passage of Central Americans to Mexico is not a new 62 | Court of Conscience
trend. Its roots are traditionally agrarian, when Guatemalans and Hondurans would migrate seasonally to work the highly productive crops in the southern part of the country, often travelling all the way to cross the American border in search of employment. The workers would create communities during the harvest months, integrating with locals and contributing to the economy, before returning back across the border with their profits. Throughout the 20th century, this practice continued, slowing only with the deterioration of agricultural production in Mexico due to the signing of the NAFTA (North American Free Trade Agreement) in 1994, after which a large proportion of staple products were consumed by the United States. This changed the migratory patterns of Central Americans and Mexicans, as they could no longer afford seasonal migra tion, instead relocating permanently; the United States of America their destination. Due to catastrophic political climates in Central America, migration has become a commonly practiced phenomenon, on which the economy and society now depends for survival. The civil war in Guatemala (1944-1996) created over one‑million displaced peoples, the majority seeking refuge in Mexico during this time. Honduras’ banana-based economy has been volatile for decades due to unstable presidents and natural disasters destroying heavily dependent crops. In Nicaragua, the divisive social and political impacts of the SandinistaSomoza decades still flagrantly taint the population, now led by the socialist-populist President Ortega. Today, the lack of law and order, low investment, corrupt governments and the ever-increasing strength of gangs are encouraging the northern migration of hundreds of thousands of Central Americans each year. On average, 1.5 million people cross the southern border annually.2 More than 500,000 deported migrants were registered in 2005.3 The combination of these political and human factors makes the southern border a highly complex area for maintaining law and rights.
Tracking Human Rights Violations
Ratified, but not Rectified in Practice
Central Americans, marginalised by their Mexi can neighbours, face many dangers and vul nerabilities in the 1000 km journey attempting to reach and cross the United States border. Human rights violations occur blatantly and frequently, often perpetrated by Mexican au thori ties themselves. Migrants, the majority undocumented, face a wide range of abuses including rape, robbery, violence, extortion, homicides and denial to services, including health and legal access.4
Although there is no comprehensive legal instrument at the international level that establishes a framework for the governance of migration, international and regional frame works for cooperative migration gov-ernance exist. These reflect primarily the interests of states, their national and interstate relations, but also give strong recognition to the human rights of migrants and the need for the promotion and protection of these rights in the exercise of state sovereignty.9 Mexico adheres to several important international regimes, although has only recently complied with ‘best practices’ through domestic legislative reform.
Further, thousands of women travel alone or with children, marginalised amongst mostly males and easily taken advantage of by authorities. These women face not only gendered isolation, but rape, human trafficking and involuntary prostitution.5 They are incredi bly vulnerable in their undocumented status and are often kidnapped to work in the sex industry along border towns. On average, 18 000 migrants are abducted annually, the majority with the intent to extort family members in the United States.6 Factors that contribute to the vulnerability of these Central Americans include their poverty, which forces them to migrate in the first place; their lack of documentation, their inability to solicit a legal visa caused by limited funds; a limited knowledge of the journey and travel route; corruption by the authorities; and an increase of border security and surveillance by the Mexican authorities.7 The Tabasco Commission for Human Rights has recognized that migrants are entitled to the right to migrate with free transit; to find work where they can; the right to life, freedom, alimentation and rest; to be treated with dignity; and have access to health, security and ownership of their possessions.8 These migrants become even more susceptible in the current Mexican environment that creates challenges unlikely to disappear anytime soon – the weak ness of the rule of law, pervasive corruption, a lack of political will and the inadequacy of federal, state and local resources, all deeply embedded in a system that normalizes violence and corrodes human rights.
––––––––– – Thousands of women travel alone or with children, marginalised amongst mostly males and easily taken advantage of by authorities.
The United Nations (UN), under international law, has created two key legal instruments for mandating the rights of migrants and refugees. The UN Convention and Protocol Relating to the Rights of Refugees was created in 1951 and became a protocol in 1967. This document outlines that in regards to individual rights, education, health and employment, refugees should encounter ‘the same treatment as is accorded to nationals’.10 Important to note also in this context is Article 31 in relation to ‘unlawful’ refugees. It writes that states ‘shall not impose penalties on refugees on account of their illegal entrance or presence.’ In 2000, Mexico became a signatory to this convention, but failed to create adequate domestic Court of Conscience | 63
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legislation to ensure its obligations until January 2011 when it passed the Law on Refugees and Complementary Protection. The legislation incorporates Mexico’s good prac tices on refugees, such as permission to work, access to health services and health insurance, access to education and recognition of educational qualifications. In 1999, Mexico ratified the International Con vention on the Protection of the Rights of All Migrant Workers and Members of Their Fami lies, its terms coming into force in 2003. By signing and ratifying, Mexico ‘affirms its political will to ensure international protection of the rights of all migrant workers, in accor dance with this international instrument, (to which) all the provisions of this Convention will be applied in conformity with its national legislation.’11 However, it is almost 10 years later that laws are finally being implemented. 64 | Court of Conscience
Regarding regional law and treaties, in 1996 Mexico ratified the Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, which upholds international obligations recognized in the UN Declaration of Human Rights. By acknowledging the existence of these instru ments, and signing legal terms to ensure their adherence in domestic policy and practices, Mexico recognizes the importance of human rights. However, until recently federal legislation has lacked sufficient terms to enforce human rights for migrants and refugees. In the past two years, Calderón has pushed through several important laws to guarantee the rights and treatment of transitory migrants, particularly those from Central America, in attempts to improve the tainted and negative international perception of Mexican human rights.
Displaced, Politically and Legally Two principal laws govern the treatment of
migrants and their rights whilst they are in Mexican territory: the General Population Law (1974) and the Migration Law. These laws em power authorities to take all ‘necessary actions’ to respond to migration flows, including the res ponsibility of deporting undocumented travel lers. The recognition of the complex and con troversial nature of current migration processes has been recognized through a series of incre mental reforms to immigration policies. Since elected in 2006, President Calderón has made the contentious issue of migration in Mexico one of his main focuses, in a move to strengthen relations with the United States, to improve its international image and to recognize its respon sibility to provide positive laws and processes for migrants transiting through the country. The laws governing migration have been labelled as ‘outdated’ and do not reflect the current socioeconomic and demographic, according to the Comisión Nacional de Derechos Humanos (Na tional Commission of Human Rights).12 Officials from the National Institute of Migration (INM) themselves have said that the General Law of Population is ‘obsolete’ and needs to be re formed.13 In addition, Mexico has an international obligation to ensure the protection of human rights under the agreements it has rati fied, namely the United Nations 1951 Refugee Con vention and its 1967 Protocol.14 In late 2010, the Mexican Senate introduced an initiative to assess, review and improve the laws that govern the migration process. In response to pressure from the INM, the public and the government, the Senate bill has constructed the legal framework of Mexico’s immigration policy as follows: a The Migration Act is to regulate the mobility of people in its broadest sense, including the entry and residence of foreigners, the transit and return of migrants, b General Population Law, after repealing more than 70 articles, regulates the field of population, internal migration and some issues on migration, and c The law of Complementary Protection Shel ter standardizes international obliga-tions by Mexico in terms of refugee issues and humanitarian protection.15
These changes proposed by the Senate would mean that the Migration Act would legally recognize the multiple dimensions of the migra tion process and correspond with the new provisions of international agreements that Mexico has ratified. Some of the most important aspects relate to the rights of migrants. For example`, in exercising their rights, the new law guarantees equal treatment of undocumented migrants, the same as ordinary Mexican citizens. Under this principle, all immigrants, regardless of their migration status, are entitled to health and education services.16 The changes represent a strong government initiative to change and improve the laws, promoting the importance of protecting human rights. Further, firm migration policies are highly polemic in the current geopolitics of North and Central America and, as a state of transit, Mexico has to ensure it adheres to best practices. Following these initiatives, on May 25, 2011, the federal government approved several legislative changes to the Migration Act, which were able to improve the legal status of immigrants and the legal obligations held by Mexican authorities. Confirmed by the Interior Ministry, the new law completely decriminalizes illegal migration and ‘provides a framework of guarantees to prot ect the rights of migrants and seeks to inhibit and punish abuses of authority.’17 Rights of access to health, education and justice will also be ensured, regardless of immigration status. The most significant change is that this legislation repeals Article 156 of the federal Criminal Code, allowing the decriminalization of undocumented passage through Mexico.18 The significance of the changes and the rights that are guaranteed: • Assume that migrants are not criminals; • Do not prescribe penalties for those who enter undocumented; • Only give power to competent authorities to arrest illegal migrants. Specific rights are to be guaranteed in this regard; • Emphasize that a person’s immigration status does not prevent the exercise of their rights and freedoms, particularly that they are to be treated without discrimination; • Allow any person who voluntarily goes to the immigration authorities and the relevant Court of Conscience | 65
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regards to its responsibilities and actions towards migratory processes. Article 151 of the Population Law establishes the powers of the migratory authorities to effect revisions of the foreigners that transit through the country.
The USA/Mexico Border (Nogales, AZ)
requirements attesting to register their immigration status; • State that the immigration authorities must resolve the immigration status of an undocu mented migrant within 24 hours, during which the individual must be notified of the frame work regulating their immigration sta tus or they will be punished by expulsion, allowing for potential claimants to receive effective remedies; and • Establish special provisions to ensure special attention to vulnerable migrants such as children, youth, women, the elderly or those with disabilities and victims of crime.19 This law is a proposal to protect migrants and should be used to ensure a safe, transi tory passage, without rights violations. Its aim is to promote legal equality between docu mented and undocumented migrants. Presi dent Calderón has said the law ‘eliminates the 66 | Court of Conscience
dispositions that favour arbitrariness and ambiguity and that promote opportunities for corruption by public servants over mi grants.’20 However, Calderón fails to address the issue that the abuse of power occurs within the authorities, and that these laws give more responsibility to them, demonstrating an unfettered confidence in the fact they will not violate their power, as has occurred in the past. The law requires immigration agents to undergo special training and vetting, and it establishes criminal penalties for agents who abuse mi grants or violate their rights. It also seeks to streamline paperwork for migrants. Although an undocumented foreigner is not to be considered a criminal, they are required to obtain papers that might include a so-called humanitarian visa. Section 5, article 57 of the constitution of the National Institute of Migration lists the objectives and obligations of the institute in
However, Mexico does not provide a competent regulatory environment to ensure these obli gations are upheld, nor to guarantee a minimum standard of ‘best practice’ in regards to treatment of migrants. Needless to say, they are making attempts. ‘Nearly 200 agents have been fired in the last year for a number of infractions, and 40 are facing jail time,’ said Salvador Beltran del Rio, head of the governmental National Institute of Migration. Seven regional directors were recently fired amid allegations that agents had delivered Central American migrants to kidnapping gangs. Agents have also been arrested on charges that they forced female Central American migrants into prostitution.21 With reason, human rights advocates have been skeptical that these new laws will relieve migrants’ ordeal, mainly due to the transparent nature of authorities colluding with the gangsters and their reluctance to cooperate with officials.22
Securing rights and security for the future A year on and the application of these inter nationally progressive laws must be seriously examined. The current political climate intensifies daily, with weekly deaths reported in relation to narcotraficantes and thousands protesting nationally in response to the unpopular election of Peña Nieto, returning the state to the autocratic rule of PRI who governed for eighty years consecutively until 2000. In the lead up to the highly dramatised and financially driven election, southern border politics has taken a back seat to more polemic issues such as the drug war and US-Mexico security relations. The most significant challenge that the Mexican government faces in the application of these reforms is its implementation and adherence. Essentially, corruption, collusion and violence have long been institutionalised
and normatised within the Mexican legal and judicial system. To ensure these important changes are applied, the environment of power, authority and law enforcement must change from an attitudinal and behavioural perspective. This requires greater education and training, regulation, monitoring and punishment, as well as an understanding that the role of these authorities is not to reprimand, exploit or violate these migrants, rather to
––––––––– – Essentially, corruption, collusion and violence have long been institutionalised and normatised within the Mexican legal and judicial system. uphold their internationally recognized rights and Mexico’s obligations to ensure a safe transitory passage during their journey to their migratory destination. Still clutching onto her father’s leg, that small girl now closes her eyes as a group of four men enter the carriage where they sit together with these silent strangers. They carry large guns, smooth, black and solid, slung over their shoulders. They step between the bodies, their heavy boots echoing against the metal of the train. ‘¿Tienes papeles?’ asks the tallest man gruffly, checking for papers of identification or documentation, which they don’t carry. Eyes unseeing, the daughter only listens to that which takes place around her. She hears a woman cry as she is led away, the unwilling trade-off for their illegal passage. In her innocence, the girl cannot imagine what they will do to that woman, all she knows is that her future is just as uncertain. Court of Conscience | 67
Rishika Pai
References 11 University of Minesota Human Rights Library, Ratification
Comes Into Force’, UNHCR (online), 28 February 2011
of International Human Rights Treaties – Mexico.
http://www.unhcr.org/4d42e6ad6.html.
http://www1.umn.edu/humanrts/research/ratification-
2 Laura v Gonzalez-Murphy and Rey Koslowski, Entendiendo el Cambio a las Leyes de Inmigración de
mexico1.html. 12 Comisión Nacional de los Derechos Humanos México
México [Understanding the Change to the Immigration
[National Commission on Human Rights, Mexico], 18 de
Laws of Mexico] (Woodrow Wilson International Center for
Diciembre 2011. D’a Internacional del Migrante [18
Scholars, 2011) 21.
December 2011, International Migrants’ Day] (18
3 Instituto Nacional de Migración (National Institute of Migration) ‘Boletin annual de estadisticas migratorias 2005 – eventos de repatriacion de mexicanos de EUA en forma ordenada y segura: 2004-2005’ (Annual Bulletin of Migration Statistics 2005 – Repatriation events of Mexicans from the USA in an orderly and safe way 20042005) published 2005, site last updated 20 July 2012. http://www.inm.gob.mx/index.php/page/Repatriacion_ de_Mexicanos_de_EUA_2005. 4 Comisión Nacional de Derechos Humanos [Mexico National Human Rights Commission], Title Here (Publisher, 2010). 5 Vladimir López Recinos, La Violacion de los Derechos
December 2011). http://www.cndh.org.mx/node/675. 13 Gerardo Mej’a, ‘INM: ley de población, obsoleta,’ [INM’s Law of Population: Obsolete] El Universal (online), September 13 2010. 14 UNHCR, ‘UNHCR Hails Mexico as New Refugee Law Comes into Force’ (2011). http://www.unhcr.org/ 4d42e6ad6.html. 15 Senado de la República, LXI legislatura (Gazeta No 15, 9 December 2010). 16 Gonzalez-Murphy and Koslowski, above n 2, 21. 17 René Zenteno Quintero, ‘SEGOB: Ley de Migración da Garant’as para Proteger Derechos’ [Immigration Law Guarantees to Protect Migrant Rights] (Migration and
Humanos de los Migrantes Hondurenos en Transito por
Religious Affairs of the Ministry of the Interior (Interior
Mexico [Violation of Human Rights of Honduran Migrants in
Ministry, 2011). http://www.inm.gob.mx/index.php/page/
Mexico] (Primer Colloquio Internacional: Migracion y
Noticia_150611.
Desarrollo – Transnacionalismo y Nuevas Perspectivas
18 González-Murphy and Koslowski, above n 2, 29.
de Integracion [First International Symposium: Migration
19 ‘Con Nueva Ley, Ningún Ilegal Será Considerado
and Devleopment – Transnationalism and New Perspec
Delincuente’ [Migrants No Longer Considered Illegal
tives on Integration, 2003) 8 http://meme.phpwebhosting.
Under New Law], El Informador (online), 25 February 2011.
com/%7Emigracion/primer_coloquio/9_3.pdf.
http://www.informador.com.mx/mexico/2011/273557/6/
6 Human Rights Watch, Mexico Report (2012) http://www.hrw.org/world-report-2012/mexico. 7 Comite de Derechos Humanos de Tabasco (Human Rights
con-nueva-ley-ningun-ilegal-sera-consideradodelincuente.htm. 20 Jorge Ramos, ‘Calderón Promulga ley de Migración’
Commission of Tabasco), ‘Central American Migration for
[Calderon Signs Law on Migration], El Universal
the State of Tabasco’. http://www.codehutab.org.mx/.
(online), 24 May 2011. http://www.eluniversal.com.mx/
8 Comité de Derechos Humanos de Tabasco; Servicio Jesuita a Migrantes México (Tabasco Commission of
notas/767626.html. 21 Tracy Wilkinson, ‘Mexico Law Aims to Reduce Risks to
Human Rights and The Jesuit Service to Mexican
Migrants Passing Through’, Los Angeles Times (online), 28
Migrants), ‘La Transmigracion Centroamericana por el
May 2011. http://articles.latimes.com/2011/may/28/world/
Estado de Tabasco’ (The Central American Transmigration to the State of Tabasco) (2009) 81. 9 See International Organisation for Migration (IOM), ‘About
la-fg-mexico-migrants-20110528. 22 See, eg, Mexican National Commission of Human Rights, ‘Programa Contra la Trata de Personas’. http://www.cndh.
Migration Law’. http://www.iom.int/jahia/Jahia/
org.mx/Programa_Contra_Trata_Personas; National Net
international-migration-law/about-migration-law/lang/en.
work of Civil Organisms for Human Rights, ‘Informes
10 UNHCR, Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) Arts 12, 23, 22, 17.
68 | Court of Conscience
Recientes’. http://www.redtdt.org.mx/index.php.
http://www.flickr.com/photos/siavashlaghai/4606261176/
1 UNHCR, ‘UNHCR Hails Mexico as New Refugee Law
discrimination: ON recognition of right to culture
Court of Conscience | 69
I Introduction
In a multicultural country like Australia, the right to culture can be a controversial issue. This article argues that in a liberal democratic society, a multicultural population’s right to culture should be respected and this respect ought not infringe on the human and cultural rights of any other group. This position will be addressed with respect to three key issues: 1 The place of Aboriginal customary laws and cultural practices in the process of criminal sentencing; 2 Freedom of expression – in particular, the right for Muslim women to wear a burqa; 3 The impact of racial anti-vilification laws and the limits they impose on the freedom of speech.
II Criminal sentencing How does Australian law treat Aboriginal and Torres Strait Islander people’s right to culture? Aboriginal and Torres Strait Islander peoples have unique cultural rights, and as the first peoples of Australia, they are essential to our national character.4 In the past, indigenous law and culture have been relevant as a mitigating circumstance5 in sentencing, as reflected in a number of Northern Territory decisions. For example, where an offender believed, based on ‘the old people’s ways’, that setting fire to a house was the only way to set a dead friend’s spirit at peace, the Court showed leniency.6 In R v GJ,7 a man who anally raped a 14-year-old girl because she had been promised to him in marriage was given 70 | Court of Conscience
http://www.flickr.com/photos/lucadevito/4467077224/
It is a fundamental right of every person to enjoy their culture, customs, and religious forms of expression.1 Indeed, the right to freely exercise religion is one of the few freedoms expressly guaranteed by the Australian Constitution.2 Re cognition and protection of cultural rights are essential to the enjoyment of individual rights and the achievement of social justice.3
–––––––– It is a fundamental
right of every person to enjoy their culture, customs, and religious forms of expression.1 Indeed, the right to freely exercise religion is one of the few freedoms expressly guaranteed by the Australian Constitution.2 only a suspended sentence upon serving a one-month term of imprisonment. The case resulted in amendment of the Crimes Act 1914 8 to prevent judges from considering Aboriginal customary law to excuse, justify, authorise or
impact on the seriousness of criminal behaviour in sentencing. This move has been seen to impair Australian indigenous people’s right to culture.9
tencing decisions that involve violence or sexual abuse. This would shift the emphasis to inclusion as opposed to exclusion of Aboriginal customary law while maintaining protection of human rights.16
Role of right to culture Should criminal sentencing take into account the customary traditions and cultural prac tices of Aboriginal and Torres Strait Islander peoples? Australian legal theoristst have argued that the removal of consideration for aboriginal cus tomary law in sentencing removed one of the few interfaces between aboriginal customary law and the western legal system in Australia.10 Tom Calma, the former Aboriginal and Torres Strait Islander Social Justice Commissioner, made the point that recognition of Aboriginal customary law is an important form of em powerment for the Indigenous community.11 Removing consideration of customary law fur ther alienates aboriginal people from the Australian legal system. This has significant implications considering that the rate of imprisonment of Aboriginal and Torres Strait Is landers was 14 times higher than for nonIndigenous Australians at 30 June 2011.12 Conversely, court leniency based on cultural considerations has resulted in horrendous violation of basic human rights. Past decisions where the cultural background of the offender have been considered by the court appear to have shown ‘sensitivity’ towards Aboriginal men in matters of violence against women and children.13 In R v GJ, Chief Justice Martin makes the assumption that ‘traditional culture’ sanc tioned violence.14 Such matters make it difficult to justify customary law and cultural practice excusing criminal behaviour.
Laws that deal with criminal sentencing of indigenous peoples An effective approach, recommended by the Australian Human Rights Commission, is that the Crimes Act15 be amended so that Aboriginal customary law is only excluded from sen
In my view, this is a good example of legal practice that appropriately deals with the criminal sentencing of Indigenous peoples. It should endorse the prevention of discrimination, protect the sacred rights of their Aboriginal culture and customs, and extend to the sensibilities of the believers. However, this should not affect sentencing decisions that concern any denial or violation of other human rights and fundamental freedoms, such as the right to adequate standard of domestic living and safety from violence. Laws that allow courts to take into account cultural practice as a reason for lessening the seriousness of criminal behaviour that infringes on these rights are ineffective.
III Freedom of expression – the burqa Should our law recognise the right to culture for Muslims? The Muslim religion holds that it is important for believers to wear clothing that com mu 17 nicates modesty and reserve. Muslims differ on the necessity of the burqa: in some countries women are required to wear a burqa when in public, in others the burqa is banned in places such as schools.18 The question to be addressed is: does affording women the right to culture demonstrate Aus tralia’s liberal democratic culture of freedom or are we sending the message that it is acceptable for a woman’s identity to be removed, potentially limiting rights and responsibilities as an Aus tralian citizen.19 In the Carnita Matthews case, a magistrate found a woman guilty of making a deliberately false statement and sentenced her to six months’ jail. Ms Mathews appealed, saying there was no proof the person in the burqa Court of Conscience | 71
http://www.flickr.com/photos/afgmatters/4324680171/
who made the statement was her. The judge found it was impossible to confirm the defen dant’s identity as the same as the person who committed the crime, showcasing that the custom impacted on the effective operation of the law.20 In my view, the laws of the state should be implemented in a culturally appro priate way, by for example, having the woman’s identity confirmed by a female officer.
Role of right to culture Should Australian law ban the wearing of burqas or would this undermine the right to culture freedom? Cases such as Mathews, can lead to significant political reactions like the introduction of a bill to ban the burqa. Given that the Australian Constitution restricts the Commonwealth from making laws that prohibit the free exercise of religion21 a number of legal hurdles would be involved in the passage of such a bill. Never theless, Prime Minister Julia Gillard and Oppo sition Leader Tony Abbott agree that the burqa is confronting. Recently, Prime Minister Gillard stated that “we want to make sure we’re teach ing…in our societies generally that men and women are equal.”22 Such views may create anxieties and lead Australians to, question whether recognising rights to expression of culture requires the community to tolerate traditional practices of other cultures even if they violate the principles of individual rights and sexual equality guar anteed in the Constitution.23 Further, a philo sophical discussion has led many critics to worry that the logic of multiculturalism could lead to other practices such as performing clitorectomies24 on young girls, compulsorily arranged marriages, or talaq divorces.25
Settling on a law that can properly address this disagreement I tend to agree with Prime Minister Gillard when she stated that: “we should be punishing the crime rather than banning an article of clo thing.”26 Banning the burqa may not necessarily 72 | Court of Conscience
–––––––– The question to
be addressed is: does affording women the right to culture demonstrate Australia’s liberal democratic culture of freedom or are we sending the message that it is acceptable for a woman’s identity to be removed, potentially limiting rights and responsibilities as an Australian citizen.19
eliminate the gender-based crimes Australian law seeks to prevent. Rather, a ban may only further marginalise and stigmatise the women concerned, sacrificing fundamental rights and freedoms in the process.27 An effective law would enforce punishment against people who discriminate against women who wear a burqa. For example, the Equal Em ploy ment Opportunity Commission in the US specifically states that refusing to hire someone because of a concern that cus tomers or co-workers may be “uncomfortable” with the hijab, is illegal.28 Many states and mu nici palities have additional laws pro tecting employees from dis crimination, threats, and harassment that relate to the burqa or hijab, and I would tend to reason that such laws will adequately deal with the multicultural issues Muslim women face in Australia.
IV racial anti-vilification laws Should our law recognise a right to culture through racial anti-vilification laws? Racial anti-vilification laws prohibit acts that could incite or encourage hatred, serious con tempt, or severe ridicule towards people be cause of their race.29 Can culture which limits the freedom of speech be justified in a modern liberal state? Can we justify protecting people from all kinds of racial vilification or blasphemy? To answer, it is rele vant to discuss the judgment in Catch the Fire v Islamic Council30 Two pastors who conducted a seminar appealed a decision that they had engaged in conduct to incite hatred against and contempt for the Islamic faith as outlined in Section 8 of the Racial and Religious Tolerance (RRT) Act 2001.31 In the Court of Appeal, Judge of Appeal Nettle stated that the Act cannot and does not purport to mandate religious tolerance – people are free to attempt to persuade other people to adopt their point of view. 32 Meanwhile, Judge of Appeal Neville turned to the meaning of s18D of the Racial Discrimination Act33 (RDA), quoting Justice French in Bropho34: “[s18D] protects freedom of speech and expression in
areas defined in…the section”, so long as it is exercised in good faith.35
Role of right to culture Should there be racial anti-vilification laws that limit the freedom of speech or should the human right of freedom of speech prevail? As per Judge of Appeal Neave, people should be free to attempt to persuade people of their point of view, just as people are free to follow the religion of their choice. The seminars conducted by the appellants should be discharged of offensive behaviour under s18C of the RDA as they fell under s18D(c): “an expression of a genuine belief held by the person making the comment”,36 and were “said or done reasonably and in good faith.”37
Law that deals with racial anti-vilification It is suggested that such a law should aim to protect religious groups from offence as well as promote the importance of free speech in the formation of public opinion. This can be justified somewhat by Judge of Appeal Neave’s comment that the legislation in question38: “ aims to strike a balance between protecting freedom of speech and pro tecting people from vilification …It would be inconsistent with this aim to interpret the legislation so as to make it impossible for people to proselytise for their own faith or to criticise the religious beliefs of others.”39 Legislation with unclear provisions amounts to ineffective law, as it fails to adequately monitor anti-vilification. In my view, litigation in Catch the Fire40 revealed the inadequacies of the legislation. The vagueness of the provisions made it easy to be caught under them, which was the source of a lengthy, long-winded judgment with41 varying reasoning by the three judges. To lessen the ambiguity of the legislation, it is suggested the provisions make clear what exactly can Court of Conscience | 73
constitute “incited hatred”, “serious contempt” “revulsion”, and “severe ridicule”.
V Conclusion This essay considered whether laws that promote or protect cultures can be justified in a modern liberal State such as Australia. Such laws were discussed using three examples. This essay asserts that a right to cultures should be recognised, but the extent to which such a right plays a role in resolving cultural disputes is limited. Cultural rights should play a role that promotes equality to all members of society,
and should not conflict with other human rights. In summary, it was contended that Aboriginal customary law should be preserved, but should be given less weight in matters concerning violence or sexual abuse which clearly encroach on human rights. Second, that burqas should be allowed as a form of expression (despite perceptions that they oppose sexual equality and can result in inefficiency of the law) pro viding issues are addressed in a culturally sensitive, yet effective, manner. And finally that laws should not offer complete protection from racial anti-vilification in all cases where it restricts the freedom for people to express their opinions.
corrie eames
‘ Tip of the iceberg’
ReferenceS 15 Crimes Act 1914 (Cth).
25 Ibid.
orgs/car/recognising_rights/
16 AustLII, above, n 1.
26 AustLII above, n 18.
pg5.htm
17 Syed, Ibrahim B. (2001)
27 Ibid.
2 s116 of the Constitution restricts
Women in Islam: Hijab. 18 Ibid.
making laws which prohibit the
19 Ibid.
free exercise of religion.
20 AustLII, above, n 1.
Liberties Union http://www.
21 s116 of the Constitution restricts
aclu.org/pdfs/womensrights/
3 http://www.austlii.edu.au/au/ orgs/car/recognising_rights/
the Commonwealth from
pg5.htm
making laws which prohibit the
4 AustLII, Land, Culture and Heritage (2011) Australasian Legal Information Institute .
Discrimination Against Muslim Women (2010) American Civil
discriminationagainstmuslimwo men at 21 May 2012.
free exercise of religion.
29 NSW Government, Vilification
22 AustLII, Land, Culture and
(2012) Lawlink http://www.
Heritage (2011) Australasian
lawlink.nsw.gov.au/lawlink/adb/
Legal Information Institute http://
ll_adb.nsf/pages/adb_
254 (Federal Court re NT).
rightnow.org.au/writing-cat/
vilification at 21 May 2012.
6 Goldsmith v R (1995) 65 SASR
article/the-burqa-or-the-ban-
30 Catch the Fire Ministries Inc &
5 R v Davey (1980) 2 A Crim R
373 7 R v GJ (2003) 196 FLR 233.
which-is-worse at 19 May 2012. 23 Kymlicka, W. (2001) Politics in
Inc [2006
VSCA 284.
the Vernacular: nationalism,
31 (Victoria).
9 AustLII, above, n 1.
multiculturalism and citizenship
32 Catch the Fire, above n 30, 34.
10 http://rightnow.org.au/writing-
(Oxford, Oxford University Press)
33 1975 (Cth).
at 175.
34 Bropho v. Human Rights and
punishment-cultural-rights-inaustralia/
24 Defined by the World Health Organization (WHO) as “all
Equal Opportunity Commission [2004] FCAFC 16.
11 Ibid.
procedures that involve partial
35 Catch the Fire above n 30, 84.
12 Ibid.
or total removal of the external
36 s18D(c)(ii)
13 Thailer Anthony, ‘Sentencing
female genitalia, or other injury
37 s18D(c)
Indigenous offenders’ (2010)
to the female genital organs for
38 RRT Act.
Indigenous Justice
non-medical reasons. “Female
39 Catch the Fire above n 30, 173.
Clearinghouse 4.
Genital Mutilation”, World Health
40 Ibid.
Organization, February 2010.
41 Catch the Fire above n 30, 190.
14 R v GJ (2003) 196 FLR 233, 26.
74 | Court of Conscience
I
Ors v Islamic Council of Victoria
8 (Cth) s16A(2A).
cat/article/clothing-and-
The Injustice of False Confessions
28 Women’s Rights Project,
the Commonwealth from
http://www.flickr.com/photos/winkyintheuk/2224781087/
1 http://www.austlii.edu.au/au/
t was a bright morning on Friday, 25 May 1979 when sixyear-old Etan Patz left his SoHo apartment in New York City (NYC) to head to school. It was the first time that Etan would make the two-block walk to the bus stop by himself. Horrifically, it would also be his last. An intense search began in the evening for the boy and continued for weeks but to no avail. His disappearance sparked the missing children’s movement, including new legislation and various methods for tracking down missing children, such as the milk carton campaigns of the mid-1980s. He was the first-ever missing child to be pictured on the side of a carton of milk advertising his absence; his innocent eyes were quickly recognisable by every New Yorker.1
Court of Conscience | 75
On 25 May 2012, NYC Police Commissioner Raymond W. Kelly announced that they had arrested a man, Pedro Hernandez, who subse quently confessed to the murder of young Etan.2 These revelations come a day short of the 33rd anniversary of his disap pearance, and a day short of what is now known as National Missing Children’s Day. Hernandez told investigators that, with the promise of a soda, he lured Etan to the basement of a supermarket where he worked at the time. Etan was then choked to death and stuffed in a bag only to be dumped in the trash blocks away.3 Commissioner Kelly is confident that Hernandez provided the detectives with intimate details about the case that only the real killer could have known.4 Despite seeming to be an open-and-shut case, certain peculiarities and inconsistencies have arisen prompting FBI officials to doubt the veracity of Hernandez’s confession.5 While Mr Kelly is adamant that there is probable cause, sceptics point to fact that at this stage no other physical evidence exists to corroborate Her nandez’s account. Hernandez has had a long history of mental health problems reportedly suffering from bipolar disorder, schizophrenia and hallu cinogenic episodes. Most stunning of all is the allegation that he had twice tried to confess to the murder in the past but was dismissed by police as crazy. No motive, no criminal back ground and a three-and-a-half hour interrogation also contribute to the uncertainty.6 This intriguing twist in the horrific tale of Etan Patz’s disappearance raises the question of confessional evidence and its place within the law. More particularly, it highlights the impor tance of recognising false confessions as a prevalent and real issue that compromises the integrity, accuracy and honour of the justice system. The idea that a person might admit to partici pating in a heinous crime that they did not in fact commit is a difficult notion to comprehend; it is 76 | Court of Conscience
resources to immorally imprison innocents, but it also allows the true perpetrators to roam free remain free and re-offend. In spite of debate surrounding the frequency of false confessions, anecdotal case evidence and research suggests that it is a reality. The Innocence Project is an initiative dedicated to freeing wrongfully convicted people. The or ganisation has exonerated 209 individuals so far and of these approximately 25 per cent were convicted by false confessions,7 a staggering proportion by any standard.
Background
–––––––– The idea that a
person might admit to participating in a heinous crime that they did not in fact commit is a difficult notion to comprehend; it is completely counterintuitive to the basic principles of self-preservation. completely counterintuitive to the basic princi ples of self-preservation. False confessions and their subsequent convictions represent a type of miscarriage of justice that is plaguing legal systems. Not only does it consume scarce
Despite calls for in-depth investigation into the phenomenon more than a century ago,8 it was widely believed amongst psychologists and legal professionals, that false confessions were extremely rare, largely irrelevant, and did not warrant further study. Typically, due to the limited technology available and the difficulty of proving innocence after the fact, appeals and protests challenging their false confession were ignored at all tiers of the legal system. This ignorance was challenged in the 1990s when two significant events resulted in an explosion of psychological research and policy reform. The first occurred in the case of the Birmingham Six, a highly publicised wrongful conviction case that gripped international media and exposed the fallibility of forensic evidence. Second, the innovative developments in DNA testing provided an independent and rigorous means of demonstrating that some admissions were factually wrong and that these people were factually innocent. Subsequently, the overturning of high profile cases such as the Central Park Jogger Rape, the Texas Pizza Hut murder and the trial of Australia’s own Andrew Mallard, have brought false confessions and their plausibility into the professional consciousness. But many Psycho logical experts claim that the current spate of DNA exonerations are only ‘the tip of the iceberg’9 when it comes to the issue of false confessions because they only concern murder and rape crime. The true frequency of false
confessions is still unknown because current samples and estimates do not include situations where no DNA evidence is available to prove the contrary, or in cases that don’t receive full scrutiny because there was either an early guilty plea or it involved a minor crime.10
Research Early research into the phenomenon spawned a nomenclature that distinguished between three types of false confession: • Voluntary – people who come forward without pressure and claim responsibility for a crime, sometimes to protect the actual perpetrator or to satisfy desires for notoriety. • Coerced-compliant – occur when a suspect acquiesces to the pressure for a confession. They are aware of their innocence but stress impedes their judgement, eventually they confess in order to escape the undesirable situation. • Coerced-internalised – an individual capi tulates and internalises their involvement in the crime. The pressurised environment causes them to believe that they are guilty for an act they did not commit.11 With the increased media coverage of the anniversary of Etan’s disappearance, the pres sure of interrogation, and Hernandez’s history of episodic hallucinations, his confession could fit into any of the three above categories. Of course, there is also the likelihood that Mr Hernandez did brutally murder young Etan and was making a true confession; only time will tell.
Causes It is widely accepted that there is no single cause or rationale behind false confessions. They are the product of a complex social pro cess that Psycho-legal specialist Gisli Gud jonsson believes involve numerous factors. His research suggests that the causes of false confessions can be divided into two comple mentary elements: dispositional factors and situational factors.12 Dispositional Factors – Research has identified individuals who particularly at risk. Court of Conscience | 77
–––––––– In Australia, the
issue of false confessions has not been as highly publicised as it has in the US or UK. However, studies have shown that the problem does exist and that reform should follow.30
Juveniles and persons with a mental im pairment are the two groups frequently referred to as being the most vulnerable in discussions of false confessions due to their gross over-representation.13 Attributes such as suggestibility, heightened obedience to authority, immature decision-making abili ties, and impulsivity have been regarded as the factors that cause members of these populations to be particularly at risk.14
Furthermore, Andrew Mallard had a helpful, innocent and highly suggestible personality that disadvantaged him in the face of the incessant pressure by the Western Australian police investigators.21 The confession video shows Mallard speculating as to how the murderer might have killed the victim, Pamela Lawrence. In his mind he was helping the investigation but Police claimed that, although it was given in third-person, it was a confession.22
Most shocking of all however, is the premise that ‘innocence puts innocents at risk.’15 It appears that innocent people are somewhat disillusioned with the belief that justice will prevail and protect them. As a result they give up all rights to silence and put their risk of falsely incriminating themselves.
Interview style and procedure
Situational factors – The biggest hurdle to creating greater awareness of the frequency of false confessions is the selfbelief along the lines of: ‘that would never happen to me!’ However, a large number of laboratory experi ments have displayed that even regular people can fall victim to false confessions under certain and subtle contextual conditions.16 These conditions include the length or nature of the inter rogation17 and the presence of a lawyer.18 Above all, though, the most ‘common element in many, if not all, false confessions is implicit promises of leniency or threats of punishment.’19 A prime example of the interplay of these factors and how they can lead to the most egregious miscarriages of justice can be seen in the Australian case of Andrew Mallard. It was a saga that continued over 11 years and divided opinion across the country. Bearing a concerning re semblance to Hernandez’s situation, Mallard was convicted despite having no history of violence, and the prosecution providing no DNA or physical evidence whatsoever. The prime evidence relied upon was con fessions pur portedly given during unrecorded interviews and a short video of Mallard confessing on camera after eleven hours of interrogation.20
78 | Court of Conscience
The style of the interview or interrogation is always a factor in the production of false confessions and is a point of conflict between academics and practitioners. Currently in Australia we have a style of investigative inter viewing that was adopted in the late 1990s and is broadly comparable to that used in England and Wales.23 Although investigative interviewing is based on a philosophy of fact-finding rather than merely obtaining a confession, law pro fessor Russell Hogg iden tifies significant problems resulting from the dual roles ex pected of our police force. They are given contradictory objectives; being required to conduct investigations objectively on the one hand, whilst on the other committed to a predetermined outcome against the ‘guilty’ party. Hogg believes that these conflicting roles heighten the chances of convicting innocent suspects and will not be apparent until an official inquiry is held – well after the devastating consequences have occurred.24 Already in Australia, the NSW Police Service has adopted the Electronic Recording of Interviews with Suspected Persons (ERISP) programme to eliminate disputes surrounding confession evi dence. Introduced in 1991, the ERISP system is a hybrid video and audio interview recorder. Adding accountability to the interview process is a positive step in tackling issues of coercion and false confessions, but it has been reported that the opportunity for persuasive tactics still re mains. Professor and Dean of Faculty of Law UNSW David Dixon showed that, in spite of NSW code of practice, up to 74 per cent of suspects were questioned prior to formal recording.25 Although the nature of questioning Court of Conscience | 79
was not specified, it is clear that loopholes remain. Once again, education and training is the key. Officers need to know that guilt-assump tive and confession-driven investigations may produce counterproductive consequences.
ReferenceS
Despite widespread and almost unanimous recognition of the need to videotape interviews,26 criticisms have arisen. Researchers caution against investing too much hope in any recording system, citing that it may be more limited in its protection of the innocent than hoped. Video recording in interviews and inter ro gations have been likened to an airplane’s ‘black box’ that can only help determine what caused a disaster after the fact, rather than prevent them from happening.27
3 Ibid.
There seems to be an exaggerated confidence in the ability of video recording to capture reality in the justice system. A recorded false confession may cause the court to overestimate the transparency of the process. Furthermore, it may create an image of objectivity that dra ma tically weakens the accused grounds to contest the confession evidence in the future.28 Although designed to protect the innocent, in some cases it may make it impossible to prove just that. Given that, as in the case of Andrew Mallard, confession evidence alone has been sufficient to support a conviction in criminal cases in Australia,29 it is extremely important that the police and courts improve their vigil ance in response to confession evidence.
Recommendations In Australia, the issue of false confessions has not been as highly publicised as it has in the US or UK. However, studies have shown that the problem does exist and that reform should follow.30 At the 2011 National Conference of the Australian Psychological Society College of Forensic Psychologists, Professor Paul Wilson pointed to conservative estimates putting the rate of wrongful conviction at one per cent of all crimes. Based on national court figures this equates to 327 miscarriages for serious crimes throughout Australia and over 8500 for all crimes each year.31
80 | Court of Conscience
1 Jessica Ramirez, ‘The Abduction That Changed America’, Newsweek (New York) January 29, 2007, 54 2 Joseph Goldstein and William K Rashbaum, ‘After 33 New York Times (New York) May 25, 2012, A1
19 Redlich, above n 13
they have their man’, Daily Mail (Online) May 27, 2012,
He said that forensic psychology and law enforcement must work together to identify false confessions as the costs of wrongful convictions to victims, the falsely accused and the community are high.
and the Epic Fight that Proved his Innocence (Allen & Unwin, 2010); Saving Andrew Mallard (Directed by Michael Muntz, Artemis International, 2006) 21 Ibid.
Pedro-Hernandez-Did-FBI-NYPD-odds-reliability-Etan-
22 Ibid.
Patz-killers-confession.html
23 D Bradford and Jane Goodman-Delahunty ‘Detecting
5 Rocco Parascandola , Kerry Burke and Larry McShane, ‘FBI doubts Pedro Hernandez responsible for the killing of Etan Patz’, New York Daily News (New York) May 27, 2012 6 Daily Mail Reporter above n 4 7 Brandon Garrett, ‘Judging innocence’ (2008) Columbia Law Review 108, 55 8 Hugo Munsterberg, On the witness stand (Garden City, NY: Doubleday, 1908) 9 Saul Kassin, Steven Drizin, Thomas Grisso, Gisli Gudjonsson, Richard A. Leo, Allison D. Redlich ‘PoliceInduced Confessions: Risk Factors and
Deception in Police Investigations: Implications for False Confessions’ (2008) 15 Psychiatry, Psychology and Law 105 24 Russell Hogg ‘Identifying and reforming the problems of the justice system’ in Kerry Carrington (eds) Travesty! Miscarriages of Justice (Sydney, Academics for Justice, 1991) 243 25 David Dixon ‘‘A window into the interviewing process?” The audio-visual recording of police interrogation in New South Wales, Australia’ (2006) 16 Policing & Society 323 26 Saul Kassin, Stephen Drizin, Thomas Grisso, Gisli
Recommendations’ (2009) Law and Human Behaviour
Gudjonsson, Richard Leo, and Allison Redlich ‘Police-
July, 2
induced confessions: Risk factors and recommendations’ (2009) Law & Human Behavior 34 - ‘all custodial
confession evidence: A review of the literature and
interviews and interrogations of felony suspects should be
issues’ (2004) Psychological Science in the Public
videotaped in their entirety and with a camera angle that
Interest 5, 35
focuses equally on the suspect and interrogator’
11 Saul Kassin and Lawrence Wrightsman ‘Confession evidence’ in S Kassin and L Wrightsman (eds), The psychology of evidence and trial procedure (Beverly Hills, Sage Publishing 1985) 67 12 Gisli Gudjonsson ‘Psychology brings justice: The science of forensic psychology’ (2003) 13 Criminal Behaviour & Mental Health 159
27 G. Daniel Lassiter ‘Videotaped Interrogations and Confessions: What’s Obvious in Hindsight May Not Be in Foresight’ (2010) 34 Law Human Behaviour 41 28 Mike McConville ‘Videotaping interrogations’ (1992) 11 New Law Journal 960 29 Nina Stevenson ‘Criminal cases in the NSW district court: A pilot study’ (1982) In J. Basten, M. Richardson,
13 Ibid.
C. Ronalds, and G. Zdenkowski (eds.) The criminal
14 Allison Redlich ‘False confessions, false guilty pleas:
injustice system (Sydney: Australian Legal Workers
Similarities and differences’ in G. Daniel Lassiter &
Group, 1982) 106
Christian Meissner (eds.) Police interrogations and false
30 Bradford and Goodman-Delahunty above n 21
confessions (Washington, American Psychological
31 ‘Education for law enforcers on false confessions could
Association, 2010) 9 15 Saul Kassin ‘On the psychology of confessions: Does
Unless scepticism is removed the status quo will persist. Professionals must become fully aware that their actions could be a subversion of justice and extremely counterproductive to their ultimate aims: ‘no one benefits when the wrong person goes to jail.’33
20 See Colleen Egan, Murderer No More: Andrew Mallard
http://www.dailymail.co.uk/news/article-2150662/
10 Saul Kassin and Gisli Gudjonsson ‘The psychology of
Professor Wilson is a listed expert in Psychology and Criminology to the International Criminal Court in The Hague. In his keynote address for the conference he emphasises that education is the key: ‘Police, in particular, need training so they can detect people who may be confessing falsely and to ensure that their interrogation techniques don’t inadvertently promote false confessions.’32
Carolina Law Review 891 18 Gudjonsson, above n 11
on Etan Patz ‘killer’s’ confession as NYPD insists that
confession may cause the court to overestimate the transparency of the process.
confessions in the post-DNA world’ (2004) 82 North
Years, Police Make Arrest in Case of Etan Patz’, The
4 Daily Mail Reporter, ‘Did he really do it? FBI casts doubt
–––––––– A recorded false
17 Steven Drizin and Richard Leo ‘The problem of false
reduce wrongful convictions’ (Media Release, 4 August 2011)
innocence put innocents at risk?’ (2005) 60 American
32 Ibid 1.
Psychologist 215
33 Ibid.
16 see for eg Saul Kassin and Katherine Kiechel ‘The social psychology of false confessions: Compliance, internalization, and confabulation.’ (1996) 7 Psychological Science 125
Court of Conscience | 81
82 | Court of Conscience
South Africa: A Land of Contrasts Observations from a Tour of a Township in Knysna
S
outh Africa is a land of great contrast: between the mountains and the sea; between its history and its present; and be tween those who have, and those who have not. At times, these contrasts pro duce unspoilt beauty and majesty. Other times, these con trasts produce great suf fering and poverty.
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http://www.flickr.com/photos/un_photo/3312299606/
http://www.flickr.com/photos/un_photo/3311470533
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Weller Zheng
In April of this year, Sam, Nesha and I were chosen to represent UNSW in the 2012 Inter national Pictet Compe tition held in South Africa. We planned our journey throughout South Africa with excitement, as we were to travel the country for two weeks after the competition finished. For most of our month long stay, we lodged in five star luxury. But we only had to lift our eyes above our hotel terraces, to see that the majority of the population lived in radically more basic circumstances. In our last week we found ourselves in Knysna, a seaside town and popular tourist destination on the Western Cape. An opportunity to visit a township arose there. These are the shanty towns that house the largely black population, with a history entangled with South Africa’s colonial mining industry, and then institu tionalised by Apartheid.1
I was staying at a backpacker’s lodge and it offered tours of the local township. Although Sam was busy with work, I managed to convince Nesha to come on the tour of the Township with me. On the agreed morning, Jay, the owner of the lodge, picked us up in his ‘Adventure Van’. He was a soft-spoken English expat, who had operated his lodge and tour business for many years. On his t-shirt was a marijuana leaf emblazoned with ‘iPot”. He had a shaved head that was softened by his girth. He took us on-board with his patient manner of explanation. We drove out of Knysna CBD, along the highway out. The country was that of rolling hillside and rivers, with rainforest flanking both sides of the road. The outpost of the Township soon appeared. Single tin shacks stood roughly scrabbled onto sloping bare patches. As we drove farther, they began to thicken, gathering in clumps, with an occasional dirt path connecting them. At the point that these shacks populated an entire hillside, Jay turned off in their direction, and into the Township proper. Court of Conscience | 83
We stopped inside the yard of a mechanic. Jay greeted the mechanic, who started wash ing our van. As we got out, we spotted two other backpackers, led by another tour guide, whom Jay greeted. We then walked past the local hairdresser, which was inside a shipping container. It was still morning and the air was still crisp when we first surveyed the Township. Shacks, huts and houses sprouted out of its green hills. Most were do-it-yourself affairs of scrap timber, brick, concrete, and corrugated iron roofs, built without regard to uniformity of colour or shape. The men that we saw carrying timber were performing some weekend renovations with materials foraged from the nearby forests. “So, sewage is a problem in the area. You see that?” Jay said, pointing to an outhouse. “They dig a hole in the ground for the toilet, and when it gets filled, they simply move the whole shack to another place with a new hole underneath.” Jay pointed in another direction, at rows of small concrete houses arranged in a classic suburban grid with electricity lines feeding into them. “These are the government built houses.” Part of the welfare policy of the new South Africa was to build as much public housing for the population that did not have permanent accommodation. The problem was that demand far outstripped supply, and some areas would receive construction before others. This turned the policy into a basic living necessity lottery. For those that did not win in this lottery, they provided themselves with ‘informal housing’. Townships now mushroomed all over South Africa wherever it was economical to do so, which was near cities and towns. The government have some land reform policies to 84 | Court of Conscience
––––––––– “ They dig a hole
in the ground for the toilet, and when it gets filled, they simply move the whole shack to another place with a new hole underneath.”
formalise ownership and title in these Townships,2 but they struggle to keep up with the reality that most black South Africans are still disadvantaged. As we walked the hills of the Township, a few stray dogs followed us. Nesha made sure that Jay and I walked between her and the dogs. A local boy also followed us. Nesha was then beset with the constant urge to take photos of all the Township children around her. “They’re sooo cute!” she explained. This boy was no older than thirteen, and was something of an apprentice tour guide to Jay. He wrestled with the boy intermittently, and
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From the paved smoothness of the highway, we drove into the dusty openness of the Township. We drove slowly, and threaded our way between the traffic of running children and men carrying tools and scraps of wood.
corrected his use of pronouns, whenever he talked about “her sisters” and “her school.” Jay was going to take us to a local high school with our little guide. However, it was closed today, as it was Freedom Day, the annual holiday celebrating the birthday of new South Africa. In the era previous, the policy of Bantu Education gave the black population schooling insofar as it would equip them to serve the white population with manual labour, without teaching any subjects seen as practically useless, such as humanities, mathematics or the sciences. These schools were kept perennially underfunded and overcrowded.3 In the new South Africa, education had been reformed to be non-discriminatory, with more funding[4] Nutrition programs were included as part of their curriculum. As a result, most of the children of the Township attended school. If they didn’t have a government bus for trans port, many would walk the distance. Instead of the local school, our little guide took us inside a local grocery store. It was a larger hut, with reinforced roof and walls. It was no bigger than a living room of a typical Australian house. On its wooden shelves were lined various necessities, such as maize, tobacco, and shampoo. With the prompting of Jay, our little guide took down a bag of maize to show us, and explained what meals could be made from it. There was a scattering of small businesses like this in the township. Economic opportunity was not amiss. It had even attracted the first Chinese family to emigrate over 12, 000 km to open a larger grocery store on another hill in the Township.5 We left the store with our little guide, and drove further into the Township. We saw the various signs of flourishing on the houses: proudly paved driveways with parked cars still shiny with newness, and small satellite dishes modestly blooming from concrete rooftops. Jay pointed out that many of those shiny new cars belonged to teachers, who were well
respected members of the community. To my surprise, we even saw some McMansions, constructed in the timeless suburban style, standing among its more humble neighbours. Our next stop was the Knysna Rastafarian Village, a little outpost of Reggae, Bob Marley, and World Peace. It now numbered over 140 members, and was the largest community in South Africa. Jay told us that the level of crime was lower in the area, and that they operated a local childcare centre. We drove up to a wooden draw gate. Behind it waited a small and wiry black man. In one hand he carried a Rastafarian Rainbow flag, and in his other a long and dirty white sack. Jay motioned to Nesha and I to approach him. He was hunched, and looked earnestly at the ground. “Welcome to the Kingdom of Rasta, my Brudda, my Sistah. My name is Brudda Zebs, and I am most honoured to have met you today”, he said. He raised his eyes, and then fist towards us. We bumped it, reverently. “You will see, that I am a RASTA. And I have been one for a long time now, yeah. As you can see, we are a peace loving peoples, and we wish to UNITE for World Peace, as led by our eternal emperor, HAILE SELASSIE”, said the Good Brother, with a preacher’s emphasis. “And as a proud Rasta man, we follow the ways of PEACE. We are vegetarian, for we do not believe in the killing and war.” Brother Zebs had not moved a step, and we stood listening intently to his gospel. “And as a proud Rasta, I wear the colours of Rasta” he said, pointing to his beanie, which was knitted with the colours of the rainbow. And I also grow my hair as Rasta.” With a flourish, Brother Zebs pulled down on the white sack he was holding. Thick, long black dreadlocks matted and twisted like many strands of canvas rope cascaded from the sack to his feet. My eyes widened. The dreadlocks were at least a metre and a half in length. Beside the Brother was a concrete mural, pain ted with scenes of Rastafarian history and Court of Conscience | 85
As Nesha and I nodded along to Brother Zebs, a Rasta teen roller-skated past us with long, slow motion strides. His dreadlocks had already grown to shoulder length. This prompted Nesha to ask Brother Zebs when the children of the community would partake in the Rastafarian Rituals. He looked at the ground, mumbled, and told us it was “for the parents to decide”. Brother Zebs then took us to their administration office. Inside he proudly showed us the tourism awards that the Rastafarian community had won, and also articles showing the local environmental work the community did. The Rastafarians were experts in clearing out foreign vegetation from the local bush. “You see, there weren’t very many Bruddas and Sistahs, and we were spread out. It was sometimes hard to keep our way of life. So we decided to UNITE. We decided to become a group. And so we applied to the Council, and we got permission. So we became the FIRST Rasta community in the world”. This point seemed to be confirmed when I saw a news clipping reporting the recent visit of Bob Marley’s daughter to the village. Beside this office stood the community Tabernacle. It was a hexagonal chapel with an open fireplace next to it. We were not allowed to step inside this chapel, and could only peek inside, at the chairs and speaking platform. Nesha was allowed to take a picture. Brother Zebs pointed at the fireplace, where music was played, through the drums, and also where the communal imbibing of the seed was 86 | Court of Conscience
–––––––– Thick, long black
dreadlocks matted and twisted like many strands of canvas rope cascaded from the sack to his feet. My eyes widened. The dreadlocks were at least a metre and a half in length. performed. Apparently, the local police did not mind such activities, so long as consumption was not excessive, and the plants were not grown in plain view. Our tour was almost over. Brother Zebs took us to one last location: the Rastafarian gift shop. It was a small market stall, wooden and rickety, lined with the handcrafts of the community. Out of politeness, I purchased a pair of bongo drum key rings. A visitor’s comments book was produced. I thought for a moment, and could only decide to write that the whole experience was all “too interesting!” Nesha and I walked back to Jay, who was waiting beside the Adventure Van. “Interesting, yeah?” he asked. “More questions than ans wers”, replied Nesha. “Ah yeah. You’ll notice too that Brother Zebs actually has native facial features. He’s descended from the native Sami tribes that have lived in this area before Apar theid, and before
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theology. We walked alongside as he outlined the significant events. All the scenes were rendered as a watercolour analogy of the stained glass found in a church. Brother Zebs stopped before a picture of a single cannabis leaf. Beneath it was a quotation from Genesis that justified the use of the plant. “And this is the seed of PEACE, called the cannabis. It is to placed here on earth to relieve our troubles, to talk the high and mighty, and to solve WORLD HUNGER.”
colonisation”, Jay added. “And you know, now after Apartheid, they’re the worst off. Now instead of whites being at the top, it’s the blacks that are in political power. The whites are second, cause they’re still needed to run the country, and the infrastructure. So that’s where all the jobs and opportunities go. The actual natives of the land are still left out at the bottom.” “Politics. Its crazy”, con cluded Jay. Reaching noon, we headed to our last destination. It was a local nightclub, and was perched on another hill. It had claimed a spectacular view of Knysna lagoon. We could see the CBD spread below like a patchwork quilt. The nightclub was divided into two levels. The lower floor was mostly for the blue-collar workers. The top floor, which could be accessed through a cover charge, were the white-collar workers, who were mostly better educated. Separation made social and business sense.
–––––––– “ And this is the seed of PEACE, called the cannabis. It is placed here on earth to relieve our troubles, to talk the high and mighty, and to solve WORLD HUNGER.”
Court of Conscience | 87
www.flickr.com/photos/un_photo/3312300710
We went upstairs, and sat at the balcony that afforded us the best view. The club was empty at this time, and so we could only imagine its lively atmosphere. Jay grew expan sive. “Yeah, so this was near where I stayed for six month, when I decided to live in the Township. So I found a house with a great view, and talked to the lady that owned it, to rent it to me.” “Why did you want to live here?” I asked. I had wondered what Jay’s story was. “Well, I wanted to get away from it all, you know. I had just lost a lot of money from my business. Just before that, everything had been going really well in tourism, back in ‘05, ‘06. There was a boom, and I was doing adventure tours and I made a lot of money. I was driving around in a Merce des, and a BMW. Then it slowed down, and I lost everything. Had to sell off my cars. Decided then to move here.” “And how did you find it?” asked Nesha. “Difficult. I soon found out that I missed a lot of creature comforts we take for granted: heating and insulation, for example. The houses here are hand built, not to any standards. So when I was sleeping at night, I could feel the wind blowing through the gaps in the walls and it bought the chill right inside. There wasn’t any hot water either. That made me come appreciate all the very basic things in life, you know. You slow down. I hung around the Township a lot. Got to know a lot of the people who went to this nightclub.” “In fact, there was one night when I was hanging out on the lower floor, that one of the regulars came up to me asking for a cigarette. Now around here, it’s no big deal to give someone just one, cause you might need one too one day. But, this guy, he kept asking me for more cigarettes. By the third or fourth time, I refused. Right there and then, the guy got angry and spat on me. So right there and then, I had to make a decision. Either I had to stand up for myself, or back down. I could feel that the whole room was watching.” “So I decided to punch him. I had to do some thing. I thought that I was going to be knocked 88 | Court of Conscience
––––––––– “ The houses here are hand built, not to any standards. So when I was sleeping at night, I could feel the wind blowing through the gaps in the walls and it bought the chill right inside. There wasn’t any hot water either. That made me come appreciate all the very basic things in life, you know. You slow down.”
out, or kicked out. But in the end everyone came to my side. They threw him out of the club that night, cause they had seen what had been going on. “So you know, people here, they make up their own minds about things. It’s not what you always expect.” Listening to his story, I could agree with the last point. “But you learn a lot of other things too, when you’re around here long enough. Like it’s sometimes quite difficult to run a business here. When I rented the house, I also made an agree ment with the owner that she would do some housekeeping for me. The first few weeks it worked out, but after that she kept on asking for time off, and demanding more money. I couldn’t see the point of paying more, so I stopped deal ing with her, and also renting from her.”
After picking up the guests, we parked and climbed up a narrow passage through bush that took us to the spot hundreds of meters above the ocean. When the view appeared, our eyes were seized by the sudden majesty of the formation below us. Two sandstone mono liths stood guarding the lagoon from the sea, allowing only a narrow passage of raging eddies that folded into the lagoon. All were silent before this sight, where the water met the hills, the forest and the river. We stood there grasping onto the rails, looking over Knysna, and its people, pondering over its contradictions and its potential.
ReferenceS 1 15.5% live in “informal housing”, almost 1 in 6 of the population. Statistics South Africa, General household
“And it’s even worse with the men. A lot of them don’t work at all. Almost half of the men you see here are unemployed.6 It’s in their culture, when they back with their tribes. The men sit around doing nothing, whilst the women do all the housework and chores. So at the backpacker’s, a lot of the people I hire are from other parts of Africa.”
survey (2011) StatsOnline, http://www.statssa.gov.za/ publications/P0318/P0318April2012.pdf at 4 August 2012 2 Department of Rural Development & Land Reform, GRANTS AND SERVICES OF THE LAND REFORM PROGRAMME (2001) Rural Development & Land Reform, http://ww2.ruraldevelopment.gov.za/DLAInternet//content/document_library/documents/ legislation/grants%20and%20services-approved%20 version%207.pdf at 5 August 2012
As we sat there, Nesha and I noticed that the view was probably one of the best in Knysna, almost better than anything from inside the ‘white’ part of the town. Jay followed our gaze. “Yeah, it’s a great view here. In fact it’s my dream to build a backpacker’s here, with this kind of view. I’d set up some volunteering activities for the community, traditional dance nights, cultural tours. But I’ll have to buy this place off the owner who’s a bit difficult to deal with. He’s all smiles one day, and abusive the next. It’s making people leave this place for another nightclub”.
3 SAHO, Bantu Education Policy (2012) South Africa History Online, http://www.sahistory.org.za/topic/bantueducation-policy at 5 August 2012 4 Jonathan Jansen & Nick Taylor, Educational Change in South Africa 1994-2003 (2003) http://www.jet.org.za/ publications/research/Jansen%20and%20Taylor_ World%20Bank%20report.pdf at 5 August 2012 5 Later that day I made first contact with this family. I was the first visitor to their store to speak mandarin with them, since they had settled two years ago. 6 24.9% of South Africans are unemployed. Statistics South Africa, Latest Key Indicators (2012) StatsOnline, http://www.statssa.gov.za/keyindicators/keyindicators. asp at 4 August 2012
Jay’s stories kept us so engrossed that we didn’t notice that it was afternoon. Glancing at his watch, he remembered he had to pick up some other guests who had gone canoeing around the rivers that fed the lagoon. As we left, he offered to take Nesha and I to Knysna Heads, a mandatory scenic spot for all that pass through. Court of Conscience | 89