En�ugh Said
Court of Conscience
Issue 11 2017
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COURT OF CONSCIENCE
Enough Said
Issue 11 2017
EDITOR IN CHIEF
TABLE OF CONTENTS
Ellen O’Rourke is a fourth year Arts/Law student who maintains a healthy dessert eating to gym going ratio. Although not a royalist, she does appreciate how a cup of Lady Grey allows her to keep calm and carry on.
EDITORIAL TEAM
Nick Carey is a penultimate year Juris Doctor student. Before law school he was a professional clarinetist and then a world travelling coffee buyer. He has since fled the beigeness of those careers into the open arms of the Australian Guide to Legal Citation. Jonathan Djasmeini is a fifth year Engineering/Law student. When not imagining what he could be doing but for a 6.5 year degree, he enjoys the simple life such as scrolling through Facebook for legal memes and videos of corgis and huskies. Alex Field is a fifth year Arts and Business/Law student who enjoys travelling, the Hamilton Musical, and slightly bitter coffee. Having just purchased his first coffee plunger, and a Spotify Premium subscription, all he needs now is a one-way ticket going anywhere.
DESIGN
Alexander Tanazefti is a recent UNSW Art and Design graduate. His work is mainly concerned with how concept, content and material form can be combined. atanazefti.com
Anna Holtby is a second year Juris Doctor student. She enjoys cleaning her house and running statistical analyses on science fiction film gender ratios almost as much as she enjoys editing. In short, she is a veritable tour de force of gregarious relatability. Henry O’Callaghan is a third year Commerce/ Law student who has found it reassuring to discover that, like mortals, legal professionals and academics occasionally make mistakes in their writing. Vijay Prakash is a fifth year International Studies/ Law ‘student’ who thinks that education is a thinly veiled production line, propagated by elites. He suspects that the laissez-faire overtones of Equity and Trusts are part of a globalist conspiracy. Tamar Ruiz is A fourth year Arts/Law student Who enjoys haikus.
ARTWORK
Miri Badger (b.1996), is a painter living and working in inner west Sydney. Her work is based on a figurative practice using high saturation and bold brushstrokes to render form with subject matter stemming from an investigation of human interaction and psyche. Alongside her traditional studio practice Miri contributes to an array of human rights publications and large scale mural works. Instagram: miri.badger
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EDITORIAL
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DISPUTE RESOLUTION AS A CATALYST FOR CHANGE IN THE HOUSING SYSTEM: A CALL FOR GENUINE ENGAGEMENT WITH ABORIGINAL COMMUNITIES
Ellen O’Rourke
Jemima McCaughan and Merinda Dutton 16
HOW A HUMAN RIGHTS ACT WOULD MAKE A PRACTICAL DIFFERENCE TO IMPROVE SOCIAL JUSTICE IN AUSTRALIA
Nathan Kennedy 22
THE PARADOXICAL INTERVENTION OF THE AUSTRALIAN LEGAL SYSTEM IN THE CONTEXT OF INDIGENOUS AUSTRALIANS AND FAMILY VIOLENCE
Candy Welsh 30
WORKING WITH MEN TO END MEN’S VIOLENCE AGAINST WOMEN: OPERATING AT THE INTERSECTION OF THEORY, IDEOLOGY AND ACTIVISM
Libby Davies 38
INQUIRY INERTIA: INDIGENOUS SERVICES STILL BEARING THE WEIGHT AFTER DECADES OF GOVERNMENT INACTION
Michaela Vaughan 46
END12 – A CAMPAIGN TO DECRIMINALISE ABORTION IN NEW SOUTH WALES
Mehreen Faruqi
SOCIAL JUSTICE VICE PRESIDENT
Stephanie Guo PRESIDENTS
Stephanie Blancquart Khushaal Vyas
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HUMAN RIGHTS, PEACE AND NORTH KOREA
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A PEOPLE-CENTRED REFUGEE APPROACH: REVISITING UNDP’S HUMAN SECURITY CONCEPT
The Hon Michael Kirby
Jeswynn Yogaratnam 64
IT’S NEVER ENOUGH SAID: THE RELATIONSHIP BETWEEN ACTION AND DISCOURSE AT THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA
Natasha Naidu
UNSW LAW SOCIETY
unswlawsoc.org
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EDITORIAL
I welcome you to the 11th Issue of Court of Conscience. The 2017 thematic is entitled ‘Enough Said’. This theme confronts the slow rate of change evident on the Australian social justice landscape. For example, six of the seven Closing the Gap targets are not on track.1 The United Nations Special Rapporteur on the Rights of Indigenous Peoples has described this as ‘woefully inadequate’.2 Accordingly, the theme calls for an end to circular dialogue and debate which produces little tangible change. As Kevin Rudd fittingly said in the Apology to Australia’s Indigenous Peoples: ‘It is not sentiment that makes history; it is our actions that make history’.3 Change is not inevitable. We must adopt a stance that is future-focused, innovative and collaborative to ensure that solutions are implemented and goals achieved. The articles in this Issue present compelling reflections upon the thematic. They have been submitted by academics, legal professionals, a Member of the NSW Parliament, a former Justice of the High Court of Australia, the CEO of a not-forprofit organisation and, of course, UNSW Law students. Jemima McCaughan and Merinda Dutton examine how the housing system breaches the human rights of Indigenous Australians, and call for modifications which would allow dispute resolution mechanisms to better embody an understanding of Aboriginal culture. There has been constant debate in the Australian context regarding the efficacy of enacting a national Human Rights Act. Using real-life examples, Nathan Kennedy considers this debate and the impact such legislative change would have upon domestic social justice concerns. Domestic violence is an endemic yet often hidden occurrence across all sectors of Australian society. Candy Welsh considers family violence within Indigenous communities and presents a framework upon which programs aimed at reducing violence and empowering Indigenous women can be based. Libby Davies unpacks and justifies the innovative work of
1 Department of the Prime Minister
and Cabinet, ‘Closing the Gap – Prime Minister’s Report 2017’ (Australian Government, 2017) 4.
2 Victoria Tauli-Corpuz, Report of the
Special Rapporteur on the Rights of Indigenous Peoples on her Visit to Australia, UN Doc A/HRC/36/46/ Add.2 (8 August 2017) 9 [47].
3 Commonwealth, Parliamentary
Debates, House of Representatives, 13 February 2008, 167 (Kevin Rudd).
White Ribbon Australia, who focus on engaging and educating men about domestic violence to reduce its prevalence. Michaela Vaughan considers the likelihood of change following the upcoming report of the Royal Commission into the Protection and Detention of Children in the Northern Territory, and draws attention to the work of local organisation, Danila Dilba, in supporting Indigenous juvenile detainees and their communities. Mehreen Faruqi explains the foundations of the End12 campaign to decriminalise abortion in New South Wales and advocates for this legislative change. Shifting from domestic to international social justice concerns, the Hon Michael Kirby analyses the violations of human rights in North Korea and calls upon the United Nations and international community to take action. Jeswynn Yogaratnam highlights the approaches and frameworks which could assist the United Nations in responding to refugees and asylum seekers. Natasha Naidu respectfully critiques the stance of the 2017 thematic through an examination of sexual and gender based violence at the Extraordinary Chambers in the Courts of Cambodia. The 11th Issue of Court of Conscience represents a collaboration between many individuals who have worked tirelessly in different capacities. First, to the authors, I commend you for producing insightful articles of such high standard. Your cooperation and patience throughout the editorial process has been much appreciated. To the 2017 Editorial Team, I say an immense thank you. The quality of this publication is a testimony to your skilfulness, diligence and passion. It has been a joy to work alongside you this past year and I am deeply grateful for your insight and support. The design of this Issue is bold and thought-provoking, a perfect embodiment of the theme. I thank Alexander Tanazefti for his innovative concept and for ensuring its flawless execution. Throughout the publication is a series of stunning artworks produced by Miri Badger. We are both privileged and thankful that she has again so perfectly captured the Issue in visual form. I also acknowledge the continued support provided by both the UNSW Law Society and the UNSW Faculty of Law. I believe that you will find this Issue of Court of Conscience challenging and inspiring. Simply put, that is ‘enough said’. Ellen O’Rourke Editor-in-Chief
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DISPUTE RESOLUTION AS A CATALYST FOR CHANGE IN THE HOUSING SYSTEM: A CALL FOR GENUINE ENGAGEMENT WITH ABORIGINAL COMMUNITIES
Jemima McCaughan Merinda Dutt�n
Jemima McCaughan is a senior solicitor for the Civil Law Service for Aboriginal Communities at Legal Aid NSW. She was instrumental to the establishment of this service in 2014 and prior to that worked with Aboriginal communities and people across NSW and Australia as a native title lawyer and in ASIC’s Indigenous Outreach Program. Merinda Dutton is an Aboriginal lawyer and Barkindji/ Gumbaynggirr woman. She is currently working with the Civil Law Service for Aboriginal Communities at Legal Aid and prior to this worked within the field of native title and land rights.
1 International Covenant on
Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 11(1).
2 Committee on Economic, Social
and Cultural Rights, General Comment No 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), 6th sess, UN Doc E/1992/23 (13 December 1991) [7].
3 Ibid [8]. 4 See Australian Institute of
Health and Welfare (‘AIHW’), ‘Homelessness Among Indigenous Australians’ (Research Paper, 16 July 2014) 7.
The ability of Aboriginal people and their communities to fully realise and access fundamental human rights in respect of housing is diminished by a system that does not adequately accommodate them. Policies, laws and procedures in New South Wales (‘NSW’) that have been designed to enshrine the right to adequate housing fall short of that purpose, favouring landlords (including the State) and further entrenching poor housing outcomes. For Aboriginal people in particular, the housing system fails to adequately recognise the complexity of their lived experiences, the histories of their communities and their priorities in relation to housing. From a perspective grounded in legal practice, this article explores how, for Aboriginal people in NSW, the rights to adequate housing and self-determination in housing are not being met. It looks specifically at dispute resolution as a point in the system that is both failing Aboriginal people and for which there is a real opportunity for Aboriginal people to be actively involved in developing the system that affects them. I POLICIES AND LAWS ARE NOT DELIVERING
ADEQUATE HOUSING
The right to adequate housing as set out in the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)1 is encompassed in the right to an adequate standard of living. The United Nations (‘UN’) has noted that the right is more than mere shelter and should be beneficially defined as ‘the right to live somewhere in security, peace and dignity’.2 Factors that are helpful in determining whether adequate housing is available to particular communities include accessibility, cultural adequacy, affordability, habitability and security of tenure.3 Much has been written about how Australia is failing Aboriginal people across all of these factors including unreasonably high homelessness statistics,4 a disregard for cultural factors in housing design that contributes to the poor condition of 11
houses5 and to overcrowding,6 and the impact of poor housing and overcrowding on health.7 In recent months, the UN has condemned Australia’s approach to housing issues in Aboriginal communities noting their concern about the persistent shortage of social housing particularly in remote areas, overcrowding and the precarious housing landscape for Indigenous people.8 In our work as lawyers in the legal assistance sector, it is not uncommon to hear a client say that they shouldn’t have to pay rent to live on their Traditional Country and certainly not when the landlord doesn’t repair or maintain the property. It is invariably followed by advice that they will face eviction if they refuse to pay rent – that the Residential Tenancies Act 2010 (NSW) (‘RTA’) does not provide tenants with any legal right to suspend rent payments even in the face of a landlord breaching its duties to repair and maintain property,9 and that their best chance of getting repairs is to come to the table with clean hands and apply to the NSW Civil and Administrative Tribunal (‘NCAT’) for an order for repairs.10 This scenario illustrates the reality of our housing system. That is, that existing law and policy does not adequately protect tenants – there are structural inequalities that inhibit enforcement of housing rights particularly by Aboriginal people – and that little has been done to listen to the priorities of Aboriginal communities with respect to housing and create a system that enshrines a right to selfdetermination in housing. In regional, rural and remote Aboriginal communities in NSW, poor housing conditions and access to housing are consistent and endemic complaints that we hear. Significant funding has been allocated under the National Partnership Agreement on Remote Indigenous Housing in the past, including to refurbish and rebuild 942 houses in NSW.11 Despite this, tenants continue to face difficulty getting the housing repairs they need and houses are not meeting the basic standards of habitability required by ICESCR. In accessing affordable housing Aboriginal applicants are often disadvantaged by tedious and document heavy application processes,12 waiting times are significant13 and the evidence requirements to show priority needs14 can be difficult to meet. Recent changes that enable applicants to apply for public housing on the telephone15 are, therefore, welcome but the severe shortage of housing continues to limit access. The RTA itself is depressing in its attempt to deliver adequate housing to our most vulnerable. As highlighted in the above example, the duty to repair16 is limited because there is no mechanism for immediate enforcement as there would be in other kinds of contracts. The right given to landlords to terminate tenancies with no grounds17 curtails a tenant’s security of tenure, and in practice the landlord’s obligation to maintain the property in a reasonable state of repair adopts a bizarre reverse onus whereby the tenant faces an uphill battle to achieve basic maintenance of their home. A right to withhold rent when a landlord breaches the agreement in certain circumstances (without the need to go to NCAT) or a proactive approach to maintaining properties, are obvious and simple ways to recalibrate the current power imbalance. These are just some of the many aspects of our current housing system that are failing to deliver adequate housing for Aboriginal people and communities. II A LANDLORD’S TRIBUNAL!
It is clear that the current mechanisms for dispute resolution are insufficient to support full and sustainable access to adequate housing. We commonly see our clients encounter major hurdles
5 Vicki-Ann Ware, ‘Closing the Gap
Clearinghouse: Housing Strategies That Improve Indigenous Health Outcomes’ (Resource Sheet No 25, AIHW and Australian Institute of Family Studies, December 2013) 3, citing Tess Lea and Paul Pholeros, ‘This is Not a Pipe: The Treacheries of Indigenous Housing’ (2010) 22(1) Public Culture 187, 191. 6 Ware, above n 5, 8. 7 Ibid; Ross S Bailie and Kayli J
Wayte, ‘Housing and Health in Indigenous Communities: Key Issues for Housing and Health Improvement in Remote Aboriginal and Torres Strait Islander Communities’ (2006) 14 Australian Journal of Rural Health 178.
8 Committee on Economic, Social
and Cultural Rights, Concluding Observations on the Fifth Periodic Report of Australia, 61st sess, 47th mtg, UN Doc E/C.12/AUS/CO/5 (11 July 2017, adopted 23 June 2017) 8 [41], [42(d)].
9 RTA ss 63, 65. 10 RTA s 65. 11 Department of the Prime Minister
and Cabinet, The National Partnership Agreement on Remote Indigenous Housing (‘NPARIH’) (30 June 2016) <https://www.pmc. gov.au/indigenous-affairs/housing/ national-partnership-agreementremote-indigenous-housing-nparih>.
12 See Department of Family and
Community Services (NSW), ‘Application for Housing Assistance’ (February 2017) <http://www. housing.nsw.gov.au/__data/assets/ pdf_file/0003/329223/DH3001WIP-0217.pdf>.
13 See Housing Pathways,
Expected Waiting Times, Department of Family & Community Services (NSW) <http://www. housingpathways.nsw.gov.au/howto-apply/expected-waiting-times>.
14 See Housing Pathways,
Evidence Requirements Information Sheet, Department of Family & Community Services (NSW) <http://www.housingpathways. nsw.gov.au/__data/assets/pdf_ file/0004/329224/DH3001a140717.pdf>.
15 See Housing Pathways, Home,
Department of Family & Community Services (NSW) <http://www. housingpathways.nsw.gov.au/>.
16 RTA s 63. 17 RTA ss 84–5. This right is only
available in periodic agreements or at the end of fixed term agreements and is not available where the same tenant has occupied the premises for 20 years or more.
18 There is no requirement in the RTA
for the notice to be in writing.
19 NCAT, Contact NCAT (11 April
2017) <http://www.ncat.nsw.gov.au/ Pages/contact_ncat.aspx>.
20 See NCAT, Social Housing
Application (January 2017) <http://www.ncat.nsw.gov.au/ Documents/ccd_form_social_ housing_application.pdf>.
21 Legal Aid NSW, ‘Aboriginal
Women Leaving Custody: Report into Barriers to Housing’ (Report No 32, 2015) 6.
22 Ibid. 23 Suzie Forell and Christine
Coumarelos, ‘Data Insights in Civil Justice: NSW Civil and Administrative Tribunal Consumer and Commercial Division (NCAT Part 2)’ (Report, Law and Justice Foundation of New South Wales, November 2016) 18.
24 Ibid 40. 25 Ibid 39. 26 See, eg, Chris Cunneen and
Melanie Schwartz, ‘Civil and Family Law Needs of Indigenous People in New South Wales: The Priority Areas’ (2009) 32 University of New South Wales Law Journal 725.
27 Zhigang Wei and Hugh
M McDonald, ‘Indigenous People’s Experience of Multiple Legal Problems and Multiple Disadvantage – A Working Paper’ (Paper No 36, Law and Justice Foundation of New South Wales, January 2014) 5.
28 Committee on Economic, Social
and Cultural Rights, General Comment No 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), 6th sess, UN Doc E/1992/23 (13 December 1991) [8(e)].
accessing relevant dispute resolution mechanisms be they direct negotiations with landlords, accessing internal review by a housing provider, using the Housing Appeals Committee (‘HAC’) or proactively applying to NCAT. It is not uncommon to have clients tell you adamantly that they have asked the landlord for repairs, only for the landlord to say they have no record of those requests and that requests must be made in writing.18 In some communities merely contacting the landlord is a challenge, with phones that ring out and emails that are not responded to. In these cases, we rarely see people proactively apply to NCAT to obtain the required repairs. For those living in regional, rural and remote areas, making an application to NCAT is challenging. Firstly, NCAT has 6 registries across NSW with only 3 of those in regional locations.19 For paper applications, the form and the payment needs to be submitted in person to one of those registries.20 An online application process is available in tenancy matters, but for those with literacy issues, limited education or other vulnerabilities, the 30-minute application process presents a major barrier. In many Aboriginal communities simply getting access to computers and the internet is difficult, and even then people are not aware that this process exists for them. Similarly, people are often unaware of their right to internal review in relation to a misapplication of Housing NSW policy or of a classification that has been made about their housing status. In a 2015 report, Legal Aid NSW called for information about a tenant’s housing status to be provided to tenants, particularly at the time they are relinquishing a tenancy due to incarceration.21 It also recommended that classification of tenants as ineligible for housing should require an order from NCAT.22 It is clear from our practice that changes in law and policy are required to make housing status information and avenues for review more readily available to tenants. Access to this information via an automated phone service or an online account and the ability to apply for review on the phone or online could increase access to available dispute resolution mechanisms. As it stands, lack of access to critical information and the avenues for redress further entrenches poor housing conditions, homelessness and inadequate standards of living. Recent research supports our observations and suggests there are structural inequalities that inhibit Aboriginal peoples’ enforcement of their housing rights. According to data drawn from NCAT and analysed by the Law and Justice Foundation of New South Wales, only 5.5 per cent of matters that come before NCAT in the social housing list are filed by a tenant,23 and only 1.4 per cent of matters in that list finalise in an order for repairs.24 This leaves 94.5 per cent of matters which are brought by landlords, 63.1 per cent of which are termination matters.25 Given other research shows that housing is one of the most prevalent legal issues experienced by Aboriginal people,26 and that living in social housing exponentially compounds the likelihood of experiencing other legal problems,27 this new data suggests that housing issues remain largely unresolved for Aboriginal people and that access to NCAT as the primary dispute resolution forum is a major issue. The right to adequate housing necessitates full and sustainable access to housing that meets the cultural and other needs of disadvantaged communities.28 It is clear from the NCAT data that NSW needs to do more to ensure that the dispute resolution mechanisms that are a key aspect of maintaining access to housing, are accessible, culturally appropriate and allow the full participation of Aboriginal people. It is unlikely that a tribunal based forum, at least in 13
its current formulation, has the capacity or power to take into account the complexities at play for many Aboriginal tenants, particularly when a tenancy dispute involves multiple Indigenous parties or has arisen out of a complex set of past and present circumstances that are beyond the tribunal to unravel. The multiple layers of disadvantage that exist for many Aboriginal people living in social housing need to be taken into account when thinking about the forms of dispute resolution that are going to work. HAC has elements that could be built upon including an informal hearing process, simple and free processes and the inclusion of Aboriginal committee members.29 Unfortunately, it cannot be used to deal with repairs and maintenance issues or other RTA claims, it is non-binding and barriers and delays at the first tier internal review stage mean we do not see it being actively used by Aboriginal people without support from lawyers or tenants’ advocates. Data about access to and use of HAC would provide a more fulsome understanding of the ways tenants use current dispute resolution mechanisms. In the meantime, more research is required into why current dispute resolution mechanisms are failing Aboriginal people and how we can change the system to be inclusive of the needs of Aboriginal people and their communities. III SELF DETERMINATION IN DISPUTE RESOLUTION:
A STARTING POINT FOR CHANGE IN THE SYSTEM
The UN Declaration on the Rights of Indigenous Peoples sets out the ‘right to determine and develop priorities and strategies for exercising their right to development’, including where it relates to housing.30 The right to self-determination is a fundamental right that prioritises Aboriginal knowledge systems and the critical need for Aboriginal people to freely determine the laws and policies that affect them. It is widely acknowledged that where initiatives are community led, or supported by and inclusive of Aboriginal ways of working, they stand much higher chances of being effective. The UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz was recently highly critical of Australia’s work in this regard, stating that: While Australia has adopted numerous policies aiming to address Aboriginal and Torres Strait socioeconomic disadvantage, the failure to respect the right to self-determination and the right to full and effective participation in these [policies] is alarming.31 That we are not providing opportunities for self-determination, and by extension, the advancement of housing outcomes for Aboriginal communities, is of serious concern, particularly as governments continue to pursue Closing the Gap.32 In NSW, the opportunities for genuine participation by Aboriginal people in mainstream processes beyond consultation are few and far between. While the land rights scheme provided an opportunity for self-determination in housing, the Build and Grow Aboriginal Community Housing Strategy33 adopted by the Aboriginal Housing Office has frustrated those opportunities by taking decision making away from Aboriginal communities.34 Furthermore, the array of policies and laws which operate across the confusing congregation of housing providers are not necessarily in harmony. For the most part, these policies and laws are driven by public servants and not Aboriginal people. There is significant scope for improvement particularly in relation to the way housing providers, NCAT and other dispute
29 See Housing Appeals Committee,
NSW Housing Appeals Committee <http://www.hac.nsw.gov.au/>.
30 United Nations Declaration on the
Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) art 23.
31 Victoria Tauli-Corpuz, ‘End of
Mission Statement by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz on Her Visit to Australia’ (Speech delivered at the United Nations Information Centre, Canberra, 3 April 2017) <http://www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews. aspx?NewsID=21473& LangID=E>.
32 Department of the Prime Minister
and Cabinet, ‘Closing the Gap – Prime Minister’s Report 2017’ (Australian Government, 2017) <http://closingthegap.pmc.gov.au/ sites/default/files/ctg-report2017.pdf>.
33 Aboriginal Housing Office, Build
& Grow Aboriginal Community Housing Strategy (2016) Department of Family & Community Services (NSW) <http://www.aho. nsw.gov.au/housing-providers/buildgrow> (‘Build and Grow’).
34 Under Build and Grow, some
Local Aboriginal Land Councils (‘LALC’) who could not meet a performance-based assessment leased their properties to the Aboriginal Housing Office who subleased them to social housing providers in exchange for funding. LALCs retained ownership of the properties but lost control of management and decisions about how housing services were provided. For more information, see Aboriginal Housing Office, Head Lease Program (2016) Department of Family & Community Services (NSW) <http://www.aho.nsw.gov.au/ housing-providers/buildgrow/headlease>.
35 Larissa Behrendt and Loretta Kelly,
Resolving Indigenous Disputes: Land Conflict and Beyond (Federation Press 2008) 9–10.
36 Ibid 12. 37 National Alternative Dispute
Resolution Advisory Council, ‘Indigenous Dispute Resolution and Conflict Management’ (Report, January 2006) 5.
38 Mark Moran et al, ‘Indigenous
Lifeworlds, Conditionality and Housing Outcomes’ (Final Report No 260, Australian Housing and Urban Research Institute, March 2016) 2.
39 Ibid 8, citing Daphne Habibis,
‘Housing Conditionality, Indigenous Lifeworlds, and Policy Outcomes: Towards a Model for Culturally Responsive Housing Provision’ (Final Report No 212, Australian Housing and Urban Research Institute, September 2013) 21.
40 Moran et al, above n 38, 93. 41 Megan Davis, ‘To Walk in Two
Worlds: The Uluru Statement is a Clear and Urgent Call for Reform’, The Monthly (online), July 2017 <https://www.themonthly.com.au/ issue/2017/july/1498831200/ megan-davis/walk-two-worlds>.
resolution avenues (such as HAC) engage with, and facilitate the decision making of, Aboriginal people. Much has been written about the implementation of Aboriginal decision-making processes to resolve disputes, particularly where those disputes arise out of a clash with Western law. Although speaking in a native title context, Behrendt and Kelly articulate an important point in relation to the use of alternative dispute resolution processes in Indigenous disputes. That is, that procedures which are modelled on ‘traditional Aboriginal community dispute resolution structures offer an alternative to litigation’ in a number of ways, including that they ‘rely on a deeper understanding’ of the complexities of ‘Aboriginal culture, communities and families’.35 This is of particular importance in the housing context where legal and policy issues, funding issues and housing disputes are interconnected, overlapping and don’t always fit into Western structures. Behrendt and Kelly also point to the use of Aboriginal dispute resolution processes as a means of resolving disputes, thereby empowering Aboriginal people and ‘nurturing Aboriginal self-determination and sovereignty’.36 One tenancy dispute may cut across a number of legal issues and relationships. For example, a dispute arising in relation to a LALC tenancy may simultaneously intersect with community conflict arising out of a native title claim, personal relationships between the tenant and LALC employees, and claims that promised funding has not been delivered. In any such dispute, ‘the boundaries between “family”, “community” and “work” may be blurred’37 and it is clear that any Western model for resolving those disputes will be ill equipped to do so as the issues do not clearly fit within the structures which are already established. In their report on Indigenous ‘lifeworlds’, Moran et al found that the importance Aboriginal tenants placed on family and kin relationships would occasionally be at odds with any obligations held under a tenancy agreement.38 In practice, we see Aboriginal clients risking their tenancy (and potentially the health of the household through overcrowding) by accommodating additional occupants for extended periods in breach of their housing provider’s policies. Disputes arising out of such issues would benefit from a ‘recognition space’, being ‘the potential for relations between actors to take place through consensual, negotiated relations of mutual cultural understanding and respect’.39 Moran et al propose a recognition model in relation to the delivery of housing outcomes for Aboriginal people in the context of the issues surrounding housing as a form of welfare dependence.40 Is there scope for a ‘recognition space’ to be embedded in the NSW housing system? And could Aboriginal dispute resolution processes be considered as a means for achieving self-determination and progressing the right to adequate housing? It is not within the scope of this article to fully explore these questions, however, it is worth noting that any future discussions about Aboriginal dispute resolution processes within the housing system should take place with local Aboriginal communities at the centre. IV
CONCLUSION
The recent Uluru Statement from the Heart is a timely call for an enshrined Aboriginal voice; one that could provide ‘direct input into decisions that are made about law and policy that affect Aboriginal and Torres Strait Islander peoples’.41 Poor housing outcomes for Aboriginal people in NSW are a clear case of why that is required in the housing sector. In our engagements with individuals, households and communities, we see complex and 15
interrelated systemic barriers that prevent Aboriginal people from realising their right to adequate housing. More often than not, those barriers relate to the lack of involvement of people and communities in the systems affecting them. Dispute resolution mechanisms play a critical role in creating a fair, equitable and accessible housing system. Dispute resolution might ordinarily be seen as the part of the system that is set up to protect established rights, and as such is driven by those rights. In this case, it is possible the contrary is true and there is an opportunity for dispute resolution to be the catalyst for change in the housing system. By creating a dispute resolution system that includes Aboriginal ways of working and is flexible enough to look at the dispute as a whole, gaps in the laws and policies that are meant to deliver adequate housing could be brought to the fore.
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HOW A HUMAN RIGHTS ACT WOULD MAKE A PRACTICAL DIFFERENCE TO IMPROVE SOCIAL JUSTICE IN AUSTRALIA
Nathan Kennedy BA LLB LLM (Human Rights & Social Justice) is currently Special Counsel/ Director - Pro Bono & Community at Hall & Wilcox Lawyers. He is also past President and current Secretary of Australian Lawyers for Human Rights. He gratefully acknowledges the research assistance for this article provided by Jessica Cheo, James Connell, Marcus DeWitt-Ryall, Rebecca McMullin and Todd Waugh.
1 See, eg, National Pro Bono
Centre, ‘What is Social Justice?’ (Occasional Paper No 1, National Pro Bono Centre, October 2011) 2.
Nath�n Kennedy
2 In particular the International
Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
3 See, eg, Universal Declaration of
Human Rights, GA Res 217A (III), UNGAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948), Preamble para 1, arts 1–2.
4 The Macquarie Dictionary defines
‘Social Justice’ as ‘a concept of justice which requires there to be a fundamental fairness in the way in which individuals can be active and productive participants in a society which thus enables its individual members to participate fully.’ Baldry describes social justice as ‘ensuring systemic and structural social arrangements to improve equality’ National Pro Bono Centre, above n 1, 2 citing Eileen Baldry, ‘The Revival of Social Justice’ (Speech delivered at the Marg Barry Memorial Lecture, Alexandria Town Hall, 16 September 2010) 7. 5 Australian Human Rights
Commission, Ten Common Questions about a Human Rights Act for Australia <https://www. humanrights.gov.au/sites/default/ files/content/letstalkaboutrights/ downloads/HRA_questions.pdf>.
I SOCIAL JUSTICE AND HUMAN RIGHTS
What precisely the term ‘social justice’ means is a matter of debate.1 This includes debate on how social justice can be realised and what role government should play. This article will focus on the role of government in improving social justice through legislative protection of human rights in a Human Rights Act (‘HRA’). The concept of ‘human rights’ is perhaps as contentious as that of social justice, however, since the adoption of the Universal Declaration of Human Rights in 1948, the concept has crystallised in international law. This article adopts the definition of human rights as understood in international law.2 At the core of international human rights law are the principles of equality and non-discrimination and that the recognition of those rights is the foundation of justice.3 Fairness and equality are usually concepts inherent to any understanding of ‘social justice’.4 Ensuring the recognition and protection of human rights in law would improve social justice in Australia. II A HUMAN RIGHTS ACT
Australia remains alone in the western democratic world in not having some form of national ‘Bill of Rights’.5 The two main forms that Bills of Rights take in nations with a common law tradition are: a constitutionally entrenched Bill of Rights like those which exists in the USA, South Africa or Canada, or a HRA such as those which exists in the UK, New Zealand, Victoria and the ACT. A constitutional Bill of Rights allows a court to strike down legislation that is incompatible with human rights while a HRA does not. At most, courts are required to interpret laws in accordance with the HRA and can make formal declarations of incompatibility. Parliament remains sovereign 19
and retains the power to explicitly violate human rights if it so wishes. Importantly, inconsistent conduct by public authorities is unlawful. III THE GOVERNMENT’S ROLE IN SOCIAL JUSTICE
One theme of social justice is the joint responsibility to address systemic/structural poverty and inequality.6 This includes the creation of fair institutions and institutional frameworks and assumes a positive intervention by government for the fair distribution of society’s resources (distributive justice). There are different views on how to distribute society’s resources fairly including: 1 Equal rights and equal opportunity to obtain
social goods; 2 A fair system of law and due process; 3 The state’s responsibility to build an individual’s ability to take up opportunities and exercise rights; and 4 A recognition that there will always be some people in society who will need a lot of support and assistance.7 Another theme of social justice is the recognition of human value and wellbeing. This supports an unequal distribution of resources based on an individual’s needs and requirements. Central to this view is the recognition of human dignity.8 IV A PRACTICAL DIFFERENCE
In illustrating how a HRA will make a practical difference to improving social justice, the discussion below will refer to reallife examples. These examples are by no means exhaustive and reference is made to a number of publications reviewing the UK, Victorian and ACT HRAs which contain much greater detail than space permits in this discussion. It is these HRAs and these practical examples that assisted in influencing the Queensland Premier to announce at the October 2016 Queensland Labor state conference that her cabinet has agreed to introduce a Human Rights Act for Queensland. A EQUAL OPPORTUNITY TO OBTAIN SOCIAL GOODS
Social goods include things such as health care, housing, employment and education. To a certain extent, existing antidiscrimination law already assists in realising equal access to these goods; however, the 2009 human rights consultation report9 revealed that rights to health, housing and education mattered most to Australians.10 There was also great concern for those with mental illness, the elderly and people with disabilities.11 These concerns would suggest that existing protections are not going far enough to provide what was described by the Human Rights Consultation Committee as ‘a fair go’.12 A HRA could improve the situation in Australia. It would remedy the patchwork human rights protection currently in existence and as noted by Professor George Williams, give ‘effect to many, usually assumed, freedoms for the first time’.13 This has been seen in the UK where the HRA has provided a way for groups falling outside anti-discrimination legislation such as gay partners, family carers, mothers in prison and domestic violence victims to argue for equality.14 It is beyond the scope of this article to analyse the gaps in current Australian anti-discrimination legislation that may benefit from a HRA; however, the examples below involve situations to which current anti-discrimination legislation is
6 National Pro Bono Centre,
above n 1, 10.
7 Ibid 11–12. 8 Ibid 15. 9 National Human Rights
Consultation Committee, ‘National Human Rights Consultation: Report’ (AttorneyGeneral’s Department, September 2009) 97.
10 Ibid 344. 11 Ibid 343. 12 Ibid 348. 13 George Williams, ‘A Charter
of Rights for Australia’ (2009) 9(3) Evatt Journal <http://evatt. org.au/papers/charter-rightsaustralia.html>.
14 Alice Donald et al, ‘Human
Rights in Britain Since the Human Rights Act 1998: A Critical Review’ (Research Report No 28, Equality and Human Rights Commission, April 2008), 68–9.
15 Human Rights Law Centre,
How Could a Human Rights Act Benefit Aboriginal and Torres Strait Islander Peoples? A Human Rights Act for Queensland <http://www. humanrights4qld.com.au/ resources>.
16 Human Rights Law Centre,
How Could a Human Rights Act Assist with the Issue of Homelessness?, A Human Rights Act for Queensland <http://www.humanrights4qld. com.au/resources>.
17 Human Rights Law Centre, How
Would a Human Rights Act Assist Women Experiencing Domestic Violence? <http:// www.humanrights4qld.com.au/ resources>.
18 National Pro Bono Centre,
above n 1, 12.
19 Ibid 11.
unlikely to respond. Through the use of a HRA the people involved have been able to access social goods they might otherwise have been denied. The Victorian HRA was used to prevent an Aboriginal woman from being excluded from housing owned and leased by a non-Aboriginal community organisation. A condition of her tenancy was that she was required to engage with community services. Her nephew died and she returned to country for ‘sorry business’. On her return, she was not able to engage with community services as she was overwhelmed with family responsibilities, trauma and grief. Her advocates were able to prevent her eviction by arguing that the organisation did not engage with her family’s cultural rights which are protected under the Victorian HRA. The community organisation then engaged an Aboriginal support service.15 It is unlikely that current racial discrimination legislation could have been utilised to obtain this result. HRAs have also been used to: • Prevent a woman with a mental illness from losing her home due to concerns about the clutter of personal items in the house when her advocate raised the right to privacy;16 and • Prevent a woman from losing her children and being made homeless after a UK Department decided she was an unfit parent because she was constantly moving her children in order to flee domestic violence. An advocate argued that the right to respect for family life was not being properly considered and the Department reversed its decision and agreed to assist with the initial costs associated with a rental home.17
20 Geoffrey Robertson, The Statute
of Liberty: How Australians Can Take Back Their Rights (Vintage, North Sydney, 2009) 59.
21 See, eg, Charter of Human
Rights and Responsibilities Act 2006 (Vic) ss 24–5; Human Rights Act 2004 (ACT) ss 21–2.
22 Commissioner for Housing in
the ACT v Y [2007] ACTSC 84 (12 October 2007) (Higgins CJ).
23 Kracke v Mental Health Review
Board (2009) 29 VAR 1.
24 [2010] ACAT 74 (29 October
2010).
B DUE PROCESS
Equality of access to opportunities and rights cannot be achieved without a fair process of decision-making in a society.18 It is the mechanism by which everyone in society applies the requirements of social justice to particular cases.19 The Australian Constitution makes no provision for due process. Such a clause was specifically rejected for racist reasons.20 The exclusion of such a clause from our Constitution was in direct contradiction to improving social justice in Australia. A HRA would remedy this. HRAs improve due process by clearly articulating the right to a fair hearing in criminal and civil matters.21 This right has been used to interpret legislation so as to allow a review of a decision to deny a woman public housing that would otherwise have been unreviewable22 and to ensure the review of treatment of a mentally ill man which was undertaken without his consent.23 Absent the HRA it is not certain what recourse the man would have had and how long the treatment would have continued without review. The right not to have a person’s privacy, family or home unlawfully or arbitrarily interfered with is another right that has ad hoc protection in Australian law. The Victorian and ACT HRAs clearly articulate the right in international human rights law terms. In Canberra Fathers and Children Services Inc v Michael Watson,24 the ACT HRA prevented a father and his children being evicted from housing provided by Canberra Fathers and Children Services. Their eviction would have resulted in homelessness. There were no published consistent rules regarding evictions and therefore the decision to evict the family was found to be an arbitrary interference with the family unit and the home. The HRA was therefore used to ensure due process in decisions being made 21
to deprive a person of a vital social resource – housing. Without the HRA it is questionable what recourse Mr Watson would have had given the notice to vacate was made under an option under the occupancy agreement. C EMPOWERMENT
In order for people to take up opportunities and exercise rights they need to be empowered to do so, as do advocates for those who cannot help themselves. The empowering effect of a HRA is one of the key benefits identified by the Victorian Equal Opportunity and Human Rights Commission. It gives people the tools to question and challenge matters that may potentially impact their rights.25 The same effect is seen in the UK where people are using the language and ideas of human rights to challenge poor treatment and negotiate improvements to public services. The UK HRA has been described as a ‘practical tool for people facing discrimination, disadvantage or exclusion’.26 HRAs lead to a strong human rights culture and a better understanding by all member of society about human rights. Although not an all-encompassing HRA, a 2003 study of the Americans with Disabilities Act of 199027 was undertaken through interviewing people with disabilities and examining their life histories. The researchers found that the new law was affecting the way people talk and think. In granting basic rights to people with disabilities, their self-image transformed, their career aspirations were enhanced, and the perceptions and assumptions of their employers and co-workers were altered. More inclusive institutional arrangements were the result.28 In Australia, the Productivity Commission found similar results in its review of the Disability Discrimination Act 1992 (Cth). It concluded that reducing disability discrimination may enhance participation and employment of people with disabilities and incentivise younger people with disabilities to improve their educational outcomes and become more economically productive in society.29 The above are two examples that focus only on disability rights but show clear social justice improvements when human rights are protected by law. A HRA encompasses many more rights than disability discrimination legislation and applies to all members of society. It has the ability to improve social justice in the wider community allowing access to social goods that some people would otherwise be denied. An example from Victoria shows how important a HRA is compared to ad hoc legislation dealing with only specific rights. A wheelchair user who suffered from mental illness and spoke a limited amount of English was to be evicted from his premises by the Department of Human Services due to information against him about a drug related allegation. The man had not been charged with any offence. Although he was a person with disabilities, disability anti-discrimination legislation would not have assisted here as he was not being discriminated against because of his disability. Using the HRA advocates argued that the man’s rights were not being considered, in particular the presumption of innocence and no consideration of procedural fairness. The matter was successfully resolved and the man was able to reside in alternative accommodation.30 While the presumption of innocence is the ‘golden thread’ of criminal law, without a HRA guaranteeing this right and requiring public authorities to consider and act compatibly with it, any submissions would have been limited to grounds of procedural fairness. This may not have been as persuasive and may have required the commencement of expensive litigation to enforce.
25 Victorian Equal Opportunity and
Human Rights Commission, Victoria’s Charter of Human Rights and Responsibilities, <http://www. humanrightscommission.vic.gov.au/ index.php/the-charter#what-arethe-benefits-of-having-the-charter>.
26 Sonya Sceats, ‘The Human Rights
Act: Changing Lives’ (Advice and Guidance, British Institute of Human Rights, 12 April 2007) 5.
27 42 USC § 12101. 28 Williams, above n 13. 29 Productivity Commission, ‘Review
of the Disability Discrimination Act 1992’ (Report No 30, 30 April 2004) 134–5.
30 Human Rights Law Centre,
‘Victoria’s Charter of Human Rights and Responsibilities in Action: Case Studies from the First Five Years of Operation’ (Report, Human Rights Law Centre, March 2012), 31.
31 ICCPR Preamble para 2; ICESCR
Preamble para 2.
32 Williams, above n 14. 33 Ibid. 34 ACT Human Rights Act Research
Team, ‘The Human Rights Act 2004 (ACT): The First Five Years of Operation’ (Report, Australian National University, May 2009), 6.
V HUMAN DIGNITY
The preambles to the ICCPR and ICESCR both recognise that ‘rights derive from the inherent dignity of the human person’.31 A HRA would make a practical difference to social justice in Australia by placing human rights and human dignity at the centre of policy making. Professor George Williams puts it succinctly: An Australian charter of rights would mark an important shift not only in the law but in how we approach politics and government policy. The focus would be on ensuring that basic freedoms and human dignity are taken into account at the earliest stages of the development of law and policy. The charter would recognise that the decisive point in protecting human rights is not in court after damage has been done, but in government and parliament before a law or policy comes into effect.32
35 ACT Human Rights Act Research
Project Team, ‘ACT Justice and Community Safety Directorate, ‘Government Response: Australian National University Human Rights Research Project Report’ (Report, ACT Government, March 2012) 2, 26.
36 Ibid 1. 37 Human Rights Law Centre, ‘More
Accessible, More Effective and Simpler to Enforce: Strengthening Victoria’s Human Rights Charter, HRLC Submission to the 2015 Review of the Victorian Charter of Human Rights’ (Report, Human Rights Law Centre, June 2015), 1.
38 Ibid. 39 Victorian Equal Opportunity and
Human Rights Commission, ‘2014 Report on the Operation of the Charter of Human Rights and Responsibilities (Report, Victorian Equal Opportunity and Human Rights Commission, June 2015), 1.
40 It is noted both HRAs in the ACT
and Victoria only enact civil and political rights.
The role of protecting human rights would be exercised most frequently by government departments and agencies. Without a HRA there are only ad hoc obligations in Australian law for human rights to be considered. A HRA would mean that rights ‘are given a higher status and legitimacy within government. Their protection would be approached more seriously and systematically’.33 One of ‘the clearest effects’ of the HRA in the ACT has been an improvement in the quality of law making.34 The ACT Government has noted a positive impact on political debate and consideration of policy issues by government as well as an impetus for agencies to consider human rights issues.35 Many agencies are exploring opportunities to better serve the community through human rights compliant policies and operational practices.36 In Victoria, the HRA has played an important role in ensuring human rights are appropriately considered by government.37 It has led to improvement in public service design, delivery and outcomes.38 It drives important human rights initiatives to address systemic issues.39 VI CONCLUSION
Governments deliver social justice through the tools available to them – legislation, policies and other programs. In Australia, however, decisions are being made without adequate consideration of the very minimum standards of justice and equality – human rights. In only two jurisdictions have these rights been enacted into law.40 Only in these two jurisdictions have the gaps in civil and political human rights protection been plugged and it is unlawful for public authorities to act contrary to these rights. It is those that have most difficulty accessing social resources that are most in need of an HRA to enforce their rights. The discussion above shows that HRAs have helped empower people who would otherwise be powerless to challenge government decisions and demand respect for their rights allowing them access to social goods and the ability to live the life they choose. HRAs have also created a society respectful of rights and caused a cultural shift in governments and their departments leading to better policy and law making which deliver better social justice outcomes. Just as HRAs have done elsewhere, a HRA would make a practical difference to improving social justice in Australia. 23
THE PARADOXICAL INTERVENTION OF THE AUSTRALIAN LEGAL SYSTEM IN THE CONTEXT OF INDIGENOUS AUSTRALIANS AND FAMILY VIOLENCE
Candy Welsh is a fourth year Law/Arts (Criminology) student at the University of New South Wales.
1 See Commonwealth, Royal
Commission into Aboriginal Deaths in Custody, Aboriginal Deaths in Custody: Overview of the Response by Governments to the Royal Commission (1991) 24.
2 Andrew Day et al, ‘Indigenous
Family Violence: An Attempt to Understand the Problems and Inform Appropriate and Effective Responses to Criminal Justice System Intervention’ (2012) 19 Psychiatry, Psychology and Law 104, 105.
3 NSW Department of Health,
Candy Welsh
‘Aboriginal Family Health Strategy 2011–2016: Responding to Family Violence in Aboriginal Communities’ (Report, 30 April 2011) 7.
I INTRODUCTION
Since colonisation, the experiences of Indigenous Australians have been marked by excessive intervention, leading to their over-representation in every stage of the criminal justice system.1 The opposite is true regarding their health and welfare, marked by a failure to intervene appropriately, or at all. This is particularly prevalent regarding Indigenous over-representation as victims of domestic violence, where there is seemingly little intervention. Where there is, it is usually a harmful experience. This article will examine the historical tensions of colonisation that detrimentally influence the relationship between Indigenous Australians and support services, including police assistance, court systems and protection programs. It will consequently recognise that the fragmentation of jurisdictions governing domestic violence in Australia is problematic and inhibits accessibility to a range of services. Finally, this article will examine existing avenues of support and rehabilitation for both Indigenous victims and perpetrators of domestic violence. It will advocate for changes in current responses through addressing areas of contemporary colonialism and encouraging Indigenous self-determination. II CONTEXTUALISING DOMESTIC VIOLENCE
A DEFINITIONS
A significant difficulty in responding to domestic violence, in any context, is defining and recognising it. This is especially true in Indigenous communities, whose familial relations and kinship make understanding and responding to issues of domestic violence more complex.2 For the purposes of this article, the term ‘Indigenous Australians’ refers to people of both Aboriginal and Torres Strait Islander descent, while recognising the existence of inherent cultural and familial diversity that must influence responses to family violence.3 Similarly, where domestic violence generally refers to violence between intimate partners, 25
it is recognised that the term ‘family violence’ is preferred by Indigenous Australians,4 as it recognises the broader scope and consequences of community and familial relations in Indigenous communities. Therefore, this article will distinguish the terms ‘family’ and ‘domestic’. The former will be used when discussing Indigenous understandings and implications of intimate violence, and the latter will be used when discussing traditional, or Western, understandings of intimate violence. In both instances, it is recognised that family and domestic violence is broad enough to encompass forms of offensive behaviour, sexual assault, property damage, threatened violence and economic abuse.5 B STATISTICS & CONTEXT
The prevalence of family violence amongst Indigenous Australians has gained both domestic and international criticism, with Indigenous women being 45 times more likely to be victims of domestic violence than their non-Indigenous counterparts.6 In the 12 months prior to the 2002 National Aboriginal and Torres Strait Islander Social Survey, one in four of the participants aged 15 or older reported having been subjected to actual or threatened violence.7 Although there is no singular cause of family violence, higher rates of victimisation have frequently been attributed to disability, low incomes, unemployment and intergenerational trauma including child removal, which have occurred as consequences of colonisation.8 While these statistics provide an alarming demonstration of the prevalence of family violence, they may not reflect the true extent of violence as under-reporting and inappropriate research methods influence data collection.9 While the prevalence of family violence and the need to address it is recognised, Indigenous family violence is largely excluded in legislative provisions. Due to the evolving discourse relating to domestic violence, legislative definitions have broadened over the years to formally recognise that domestic violence encompasses more than simply physical violence between intimate partners.10 However, these changes have been predominately influenced by traditional understandings of intimate relationships and families and have occurred to the exclusion of legislative recognition of the broad nature of Indigenous family structures.11 In order for the law and government agencies to effectively respond to issues relating to family violence, there must first be formal recognition of its existence, as well as cultural challenges to the perception of traditional understandings of domestic violence. C CONTEMPORARY COLONIALISM
As previously stated, discussions of family violence must be placed in the context of Australia’s colonial history and the devastating experiences of Indigenous Peoples with the legal system and welfare agencies. One example of contemporary colonialism is the removal of children. Although the officially sanctioned period of child removal, known as the Stolen Generations, ended in the 1970’s, there is evidence to suggest it still persists today.12 The number of Indigenous children being forcibly removed from their homes is unprecedented in Australian history with the removal of Indigenous children occurring at nearly 10 times the national average. Recent statistics reveal that 16,846 Indigenous children are in out of home care – a rate rivalling removals during the Stolen Generations.13 Given the historical mistrust of welfare services, particularly in regards to considerations of children, Indigenous women may fear reporting family violence as it can result in the removal of their children.14 This is despite legislative
4 Fadwa Al-Yaman, Mike Van
Doeland and Michelle Wallis, ‘Family Violence Among Aboriginal and Torres Strait Islander Peoples’ (Report No 17, Australian Institute of Health and Welfare, November 2006) 15.
5 Samantha Jeffries and Christine
EW Bond, ‘Taking the Problem Seriously? Sentencing Indigenous and Non-Indigenous Domestic Violence Offenders’ (2015) 48 Australian and New Zealand Journal of Criminology 463, 464.
6 Alex Newton, ‘Domestic Violence
in Indigenous Communities: Competing Explanations and Criticisms’ (2002) 13(1) Polemic 33, 33.
7 Al-Yaman, Doeland and Wallis,
above n 4, ix.
8 Ibid; Kyllie Cripps and Megan
Davis, ‘Communities Working to Reduce Indigenous Family Violence’ (Research Brief No 12, Indigenous Justice Clearinghouse, June 2012) 1 <http://www. healthinfonet.ecu.edu.au/uploads/ resources/23797_23797.pdf>; Day et al, above n 2, 106–7.
9 Day et al, above n 2, 106. 10 Jeffries and Bond, above n 5, 464. 11 Heather Nancarrow, Christine
Hanley and Renette Viljoen, ‘Domestic and Family Violence: Awareness, Attitudes and Experiences – Preliminary Findings’ (Report, Queensland Centre for Domestic and Family Violence Research, December 2012) 5–7 <https://www.cqu.edu.au/__data/ assets/file/0017/25325/Final_ Dec12.pdf>; See also Australian Law Reform Commission, Family Violence – A National Legal Response, Report No 114 (2010) ch 8 <https://www.alrc.gov.au/ sites/default/files/pdfs/publications/ ALRC114_WholeReport.pdf>.
12 Heather Douglas and Tamara
Walsh, ‘Mothers, Domestic Violence, and Child Protection’ (2010) 16 Violence Against Women 489, 500.
13 Kristy Raithel, Rachel Kilo and
Callin Ivanovici, ‘Child Protection Australia 2015–16’ (Report No 66, Australian Institute of Health and Welfare, 16 March 2017) 52 <https://www.aihw.gov.au/ getmedia/bce377ec-1b76-4cc587d9-d0541fca586c/20479.pdf. aspx?inline=true>; Paddy Gibson, ‘Stolen Futures’ [2013] (212) Overland 44, 46.
14 Donna Coker, ‘Crime Control and
Feminist Law Reform in Domestic Violence Law: A Critical Review’ (2001) 4 Buffalo Criminal Law Review 801.
15 Family Law Act 1975 (Cth)
s 68R(1).
27
protections for children and considerations of parent-child contact when issuing family protection orders under the Family Law Act 1975 (Cth).15 However, the aforementioned rate of removal for Indigenous children demonstrates that the fears of Indigenous women are well-founded and highlight that an era of contemporary paternalism persists in Australia. Indigenous relationships with police have been historically marked by tension and violence. Today, the same fear and distrust of police remains as Indigenous experiences with police and the criminal justice system continue to be marked by racism and violence.16 This is problematic as it inhibits both Indigenous utilisation of resources, and police responses to reports of family violence. An estimated 90 per cent of nonIndigenous women already do not report domestic violence to police due to perceived delays in police action, their perceived inability to effectively address the situation and provide protection, and fear of criminal prosecution themselves.17 Even when family violence matters are reported or responded to, Indigenous women assert that it is equally traumatic as the initial violence, and that police will ‘either do nothing … or rape you themselves’.18 These examples highlight the difficulty in addressing issues of domestic violence in the criminal justice system and the lack of appropriate intervention. This is compounded by the traces of colonialism and prevents Indigenous Australians from accessing an already limited number of resources when faced with family violence. D BARRIERS TO ACCESS
The above considerations reflect a small portion of factors that inhibit Indigenous women from accessing the legal system and family violence services. Lucashenko recognises that Indigenous communities themselves present their own limitations.19 Violence discourse within Indigenous communities has predominately centred around violence suffered by Indigenous males at the hands of the State (for example, deaths in custody).20 This has to some degree limited the discussion of Indigenous women as victims of family violence, making it difficult to conceptualise.21 Secondly, it has discouraged Indigenous women from speaking out against violence suffered at the hands of an Indigenous perpetrator as to do so would violate Indigenous solidarity against the criminal justice system.22 Given the strong kinship within Indigenous communities, many women fear stigmatisation and isolation from their support systems, financial instability and accessing housing which makes rebuilding their lives challenging.23 These issues are compounded for women in remote areas.24 Even where Indigenous women do separate from the perpetrator, studies have demonstrated that the violence often gets worse.25 Thirdly, the poor treatment of Indigenous males in the criminal justice system is often a consideration in women not reporting as they seek to protect the perpetrator from that system.26 These considerations emphasise the need for perceptions of violence to be challenged in both Indigenous and non-Indigenous communities if effective improvements are to be provided for victims of family violence. III JURISDICTIONAL FRAGMENTATION:
CRIMINAL VERSUS CIVIL JURISDICTION
In order to understand the nature and consequences of existing or potential remedies, it is important to understand the context in which they operate. Domestic violence in Australia operates largely under the domain of civil law (in the form of
16 Janet Phillips and Penny
Vandenbroek, ‘Domestic, Family and Sexual Violence in Australia: An Overview of the Issues’ (Research Paper, Parliamentary Library, Department of Parliamentary Services, 14 October 2014) 10 <http:// parlinfo.aph.gov.au/parlInfo/ download/library/prspub/3447585/ upload_binary/3447585. pdf;fileType=application/pdf>.
17 Matthew Willis, ‘Non-Disclosure of
Violence in Australian Indigenous Communities’ (Trends & Issues in Crime and Criminal Justice No 405, Australian Institute of Criminology, January 2011) 1–2, 5 <http:// www.aic.gov.au/media_library/ publications/tandi_pdf/tandi405. pdf>; NSW Ombudsman, ‘Domestic Violence: Improving Police Practice – A Special Report to Parliament Under s 31 of the Ombudsman Act 1974’ (Special Report, December 2006) 15 <https://www. ombo.nsw.gov.au/__data/assets/ pdf_file/0015/3480/Domesticviolence-improving-police-practiceSpecial-Report-to-ParliamentDecember-2006-.pdf>.
18 Roger Moody (ed), The Indigenous
Voice: Visions and Realities (Zed Books, 2nd ed, 1998), cited in Larissa Behrendt, ‘Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse’ [1993] 1 (August) The Australian Feminist Law Journal 27, 31.
19 Melissa Lucashenko, ‘Violence
Against Indigenous Women: Public and Private Dimensions’ (1996) 2 Violence Against Women 378, 379–80.
20 Ibid. 21 Ibid 387. 22 Ann-Claire Larsen and Alan
Petersen, ‘Rethinking Responses to “Domestic Violence” in Australian Indigenous Communities’ (2001) 23(2) Journal of Social Welfare and Family Law 121, 126.
23 Willis, above n 17, 4; Lorana
Bartels, ‘Emerging Issues in Domestic/Family Violence Research’ (Report No 10, Criminology Research Council, April 2010) 5 <http://www.aic.gov. au/media_library/publications/rip/ rip10/rip10.pdf>.
24 Bartels, above n 23, 5. 25 See Douglas A Brownridge,
Violence Against Women: Vulnerable Populations (Routledge, 2009) 59.
26 Australian Law Reform
Commission, above n 11, 357.
27 Coker, above n 14, 802; Annabel
Taylor et al, ‘Domestic and Family Violence Protection Orders in Australia: An Investigation of Information Sharing and Enforcement’ (State of Knowledge Paper No 16, ANROWS, December 2015) 6 <https://d2c0ikyv46o3b1. cloudfront.net/anrows.org.au/s3fspublic/16_4.1%20Legal%20WEB_ FINAL_0.pdf>; See also Crimes (Personal and Domestic Violence) Act 2007 (NSW).
28 Heather Douglas, ‘The Criminal
Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 468–9; Carol E Jordan et al, ‘The Denial of Emergency Protection: Factors Associated with Court Decision Making’ (2008) 23(5) Violence and Victims 603, 603.
29 Douglas, above n 28, 444. 30 Sarah Ailwod, Patricia Easteal and
Jessica Kennedy, ‘Law’s Indifference to Women’s Experience of Violence: Colonial and Contemporary Australia’ (2012) 35 Women’s Studies International Forum 86, 86.
31 Carol Thomas and Joanne Selfe,
‘Aboriginal Women and the Law’ (Paper presented at Aboriginal Justice Issues, Canberra, 23–25 June 1992) 173; See Loretta Kelly, ‘Using Restorative Justice Principles to Address Family Violence in Aboriginal Communities’ in Heather Strang and John Braithewaite (eds), Restorative Justice and Family Violence (Cambridge University Press, Melbourne, 2002) 206, 209–210.
32 Heather Douglas and Lee Godden,
‘The Decriminalisation of Domestic Violence: Examining the Interaction Between the Criminal Law and Domestic Violence’ (2003) 27(1) Criminal Law Journal 32, 33.
33 Jocelynne A Scutt, Women and the
Law: Commentary and Materials (The Law Book Company Ltd, Sydney, 1990) 459.
34 Jane Wangmann, ‘Incidents v
Context: How Does the NSW Protection Order System Understand Intimate Partner Violence’ (2012) 34 Sydney Law Review 695, 695.
35 Douglas, above n 28, 464. 36 Queensland Indigenous Family
Violence Legal Service, Submission No 019 to the Legal Affairs and Community Safety Committee, Inquiry into Strategies to Prevent and Reduce Criminal Activity, 16 July 2014, 3.
37 Heather Nancarrow, ‘In Search of
Justice for Domestic and Family Violence’ (2006) 10 Theoretical Criminology 87, 89.
38 Chris Cunneen, ‘Criminology,
Criminal Justice and Indigenous People: A Dysfunctional Relationship?’ (2009) 20 Current Issues in Criminal Justice 323, 326; Phillips and Vandenbroek, above n 16, 9–10.
39 Nancarrow, above n 37, 87–8. 40 Ibid.
protection orders) as opposed to, or operating synonymously with, criminal law (in the form of arrest and prosecution) under the Crimes (Personal and Domestic Violence) Act 2007 (NSW).27 The evolution of civil responses to domestic violence occurred following recognition that criminal law processes were ineffective.28 These failings included the high standards of proof, and the narrow scope of criminal offences, thus excluding certain violent behaviours.29 Despite civil legislation being introduced to ameliorate deficiencies in the criminal justice approach, scholars still consider responses of police and the legal system to domestic violence as ineffective, with Ailwood, Esteal and Kennedy noting ‘women’s voices [continue] to be muted and domestic violence continues to be invisible, to some extent, in the eyes of the law’,30 especially for Indigenous women. The continuously failing responses can in part be attributed to the ineffective utilisation of concurrent civil and criminal responses by police, the judicial system, and women – who are unaware of their rights as they operate in the relevant jurisdiction.31 This fragmentation has led to debates over the most appropriate course of action in the primary stages of domestic and family violence responses. One of the most notable arguments relating to the civil law jurisdiction is that it has effectively decriminalised domestic family violence.32 Instead of treating violent behaviour as criminal, perpetrators are often only given civil restraining orders known as apprehended domestic violence orders.33 Generally, criminal action is only taken against perpetrators when they breach an order, which occurs frequently, and can make perpetrators behaviour increasingly aggressive.34 Even still, most breaches do not result in conviction and are instead trivialised by small fines, or no conviction.35 Further evidence has shown that although Indigenous women are predominately victims of family violence, they underutilise civil resources. The Queensland Indigenous Family Violence Legal Service found that in many remote communities, police are the applicants in 95 per cent of family violence matters.36 This may be the result of a lack of knowledge concerning rights, or it may reflect excessive and culturally inappropriate intervention. Despite this, there are still concerns about family violence being governed by criminal law related to colonial tensions between Indigenous Australians and the criminal justice system. Specifically, victims may become apprehensive to utilise it and create further invisibility of family violence.37 IV
REMEDIES
A EXISTING REMEDIES
The prevalence of Indigenous women and children as victims of violent crime and family violence38 suggests that current measures are ineffective and do not address cultural or practical concerns surrounding family violence. This article does not seek to provide specific strategies regarding offender prosecution and rehabilitation, or victim support. Instead, it seeks to provide a theoretical framework which should influence any program and does so through assessment of the strengths and limitations of existing programs. In a study conducted by the Aboriginal and Torres Strait Islander Women’s Taskforce on Violence, two taskforces of women explored justice responses to family violence.39 One taskforce consisted of only Indigenous women, and the other of mostly non-indigenous women, with the exception of two who were Indigenous. Both taskforces came to different conclusions as to appropriate and effective responses.40 The opposing findings of the taskforce highlights 29
that perceptions of ‘appropriate’ responses to domestic violence are culturally informed and the need for Indigenous Australians to be involved in the process of establishing effective action. B ADVOCATED CHANGES
It must be recognised that any advocated changes should be proactive and address the causes of family violence. These causes find their roots in colonialism and include education and health deficiencies, substance abuse, unemployment and institutional racism. These factors further compound situational causes of crime which include financial instability, subcultural tolerance of violence and inaccessible prevention programs against family violence.41 Further, the role of selfdetermination in allowing Indigenous males and females to be part of the process, articulate cultural needs and engage with the development of any program will likely increase the effectiveness of preventative measures.42 In considering the failures of existing prevention programs, Blagg advocates for mentoring of young Indigenous fathers, healing camps that actively seek to address causes of family violence and repair inter-generational trauma.43 Other approaches advocate family violence services targeted at men so they can seek help before issues escalate, as well as violence prevention education targeted at Indigenous youth to break an implicit cycle of acceptance towards family violence.44 However, any programs implemented must recognise that although females dominate empirical evidence as victims, they can also be the aggressors, and proactive or reactive support services for victims and perpetrators should be accessible to both genders. In instances where proactive measures have failed, community-centred reactive measures are more appropriate than traditional penal sentencing. For example, there are quasi-hybrid jurisdictions within the Australian legal system. Those are Indigenous Sentencing Courts (‘ISCs’) which operate in every Australian jurisdiction, except for Tasmania.45 ISCs operate under Australian criminal law without consideration of Indigenous customary law and assist in addressing Indigenous over-representation.46 Further, cultural appropriateness increases participation in the justice system.47 The participation of Aboriginal Elders has contributed to increased accountability and cultural sensitivity, improving the experiences of Indigenous Australians in the criminal justice system.48 As a result, ISCs have been advocated for dealing with family violence matters, however, this is problematic. Firstly, ISCs exclude hearings relating to sexual offences, and family violence offences are excluded or restricted in Victoria and the Northern Territory.49 Further, they are still evolving as a legitimate means of sentencing for Indigenous people and a comparatively small number of people are being processed through ISCs, with a majority still being subjected to mainstream courts.50 While ISCs have the potential to be an effective form of accountability and protection, issues of accessibility first need to be addressed. Other potential reforms include rehabilitative mechanisms, such as restorative justice and holistic programs. Both include facilitating dialogue with parties to a crime to discuss its consequences, allowing offenders to rectify their wrongdoing and collectively finding solutions. They have been praised as the familiarity of these processes for Indigenous Australians has achieved greater success in participation rates.51 Further, it provides a forum to conceptualise and denounce family violence. Although favoured for its power to rehabilitate,52 criticisms of community approaches include the tendency
41 Cripps and Davis, above n 8, 2;
Paul Memmott et al, ‘Violence in Indigenous Communities: Full Report (Crime Prevention Branch, Cth Attorney-General’s Department, January 2001) 18, 24 <http://www. aerc.uq.edu.au/filething/get/2022/ violenceindigenous.pdf>; Janet Stanley, Adam M Tomison and Julian Pocock, ‘Child Abuse and Neglect in Indigenous Australian Communities’ (Research Brief 19, National Child Protection Clearinghouse, Spring 2003) 16 <https://aifs.gov.au/cfca/sites/ default/files/publication-documents/ issues19.pdf>.
42 Chris Cunneen, ‘Preventing
Violence Against Indigenous Women Through Programs Which Target Men’ (2002) 25 University of New South Wales Law Journal 242, 244.
43 Harry Blagg, ‘Pilot Counselling
Programs for Mandate and Non-Mandated Indigenous Men – Research and Program Development, Full Report’ (Report, 2001) 4, cited in Chris Cunneen, ‘Preventing Violence Against Indigenous Women Through Programs Which Target Men’ (2002) 25 University of New South Wales Law Journal 242, 245.
44 Cunneen, ‘Criminology, Criminal
53 Donna Coker, ‘Enhancing
Autonomy for Battered Women: Lessons from Navajo Peacemaking’ (1999) 47 UCLA Law Review, 14–15.
54 Memmott, above n 51, 222. 55 Chris Cunneen, ‘Community
Conferencing and the Fiction of Indigenous Control’ (1997) 30 Australian and New Zealand Journal of Criminology 292, 295.
to ‘over-emphasize the value of [an apology]’.53 While both approaches have the potential to effectively address issues of family violence, their implementation must be monitored to prevent replacing the traditional justice system and ensure perpetrators are held accountable.54 Further, integration of such approaches into mainstream justice cannot be assumed for Indigenous communities and necessitates proper consultation to ensure that issues are correctly identified and responses are specifically tailored.55 V CONCLUSION
Part of the difficulty in responding to family violence is the difficulty of Indigenous Australians to recognise it within their own communities. This is problematic when attempting to integrate Indigenous responses into the mainstream legal system. This article asserts that there is no singular approach that will systematically improve responses to family violence at an individual or community level. Instead, it is recognised that the most effective approach will consist of an amalgamation of approaches, subject to extensive consultation of Indigenous communities regarding their implementation. Until issues of contemporary colonialism, police responses and access to domestic violence resources are addressed, the criminal justice system is complicit in the perpetuation of family violence.
Justice and Indigenous People’, above n 38, 246.
45 Elena Marchetti, ‘Indigenous
Sentencing Courts and Partner Violence: Perspectives of Court Practitioners and Elders on Gender Power Imbalances During the Sentencing Hearing’ (2010) 43 Australian and New Zealand Journal of Criminology 263, 263.
46 Elena Marchetti, ‘Indigenous
Sentencing Courts’ (Research Brief 5, Indigenous Justice Clearinghouse, December 2009) 1.
47 Ibid 2. 48 Anthony Morgan and Erin Louis,
‘Evaluation of the Queensland Murri Court: Final Report’ (Technical and Background Paper Series 39, Australian Institute of Criminology, Canberra, 2010) 122.
49 Emma Buxton-Namisnyk, ‘Does
an Intersectional Understanding of International Human Rights Law Represent the Way Forward in the Prevention and Redress of Domestic Violence Against Indigenous Women in Australia?’ (2014) 18(1) Australian Indigenous Law Review 119, 125.
50 Elena Marchetti, ‘Indigenous
Sentencing Courts and Partner Violence: Perspectives of Court Practitioners and Elders on Gender Power Imbalances During the Sentencing Hearing’ (2010) 43 Australian and New Zealand Journal of Criminology 263, 265.
51 Paul Memmott, ‘Community-
Based Strategies for Combating Indigenous Violence’ (2002) 25 University of New South Wales Law Journal 220, 227.
52 Tony Ward and Robyn Langlands,
‘Repairing the Rupture: Restorative Justice and the Rehabilitation of Offenders’ (2009) 14 Aggression and Violent Behavior 205, 205–6.
31
WORKING WITH MEN TO END MEN’S VIOLENCE AGAINST WOMEN: OPERATING AT THE INTERSECTION OF THEORY, IDEOLOGY AND ACTIVISM
Libby Davies is the CEO of White Ribbon Australia.
1 Department of Social Services,
‘National Plan to Reduce Violence Against Women and Their Children 2010–2022’ (2011) 10.
2 Our Watch, ‘Change the Story: A
Shared Framework for the Primary Prevention of Violence against Women and Their Children in Australia’ (November 2015).
Libby D�vies
3 Tracy Castelino, ‘A Feminist
Critique of Men’s Violence against Women Efforts’ [2014] (Autumn) Ending Men’s Violence Against Women and Children: The No to Violence Journal 7, 11, 24; Michael Flood, ‘Work with Men to End Violence against Women: A Critical Stocktake’ (2015) 17(s2) Culture, Health and Sexuality S159, S163; Bob Pease, ‘Men as Allies in Preventing Men’s Violence against Women: Principles and Practices for Promoting Accountability’ (White Ribbon Research Series, March 2017) 6, 11.
Men’s violence against women has gained the public scrutiny it deserves and is at the forefront of research and policy. It is being informed by more accurate and comprehensive data including what Australians think about men’s violence against women and their experiences of violence. There are national, state and territory policies in place to end men’s violence against women1 and a national framework to guide violence prevention work.2 While there will always be data gaps and ongoing policy developments, as our understanding of men’s violence against women improves and more women share their experiences, we must turn research and policy into action. When dealing with a population level problem that requires generational attitudinal and behavioural change, this sometimes requires an approach that pushes the boundaries of theory, ideology and activism. White Ribbon Australia engages men to prevent men’s violence against women. We do this on the understanding that men and women need to work together for Australian women to live in safety, free from all forms of men’s violence and abuse. The involvement of men in this movement is highly contested, with concerns that the increasing presence of men in initiatives, such as the White Ribbon social movement, has the potential to reproduce the inequalities at the heart of men’s violence against women, shift the focus of the social movement from gender equality to new masculinities and devalue women’s expertise.3 This article will acknowledge these tensions and outline the rationale for, and challenges of, engaging men in our work. It will also look at some outcomes of male engagement in White Ribbon. I RESEARCH AND POLICY ON THE NATURE AND
EXTENT OF MEN’S VIOLENCE AGAINST WOMEN
Decades of Australian academic scholarship on men’s violence against women and its associated areas of study, including masculinities, gender equality, social work, health, education, 33
law and policy, have made invaluable contributions to domestic and international scholarship. In many emerging areas of enquiry, Australian academics and research are recognised as world-leading.4 Australia also has strong data on the prevalence and impact of violence against women including the Personal Safety Survey administered by the Australian Bureau of Statistics,5 supported accommodation data from the Australian Institute of Health and Welfare, health impact data from the Australian Longitudinal Study on Women’s Health and crime data from each state and territory. From these and other sources, we know that in Australia: • One in three women has experienced sexual and/or physical violence from someone they know.6 • On average, one woman a week is killed by a current or former partner.7 • Domestic and family violence is the principal cause of homelessness for women and their children.8 • Women who have experienced intimate partner violence have worse health outcomes, including poorer mental and physical health and higher levels of bodily pain than women who have never experienced intimate partner violence.9 • One in four children are exposed to domestic violence.10 Understanding more about the extent and nature of men’s violence against women through research and analysis underpins the National Plan to Reduce Violence against Women and Their Children (‘National Plan’),11 which is the key policy document guiding national efforts to prevent and deal with the consequences of men’s violence against women. The National Plan led to the establishment of Australia’s National Research Organisation for Women’s Safety (‘ANROWS’) in 2014, which focuses on commissioning research into violence against women and their children to inform policy and practice. Thanks to the National Research Agenda developed by ANROWS together with the Commonwealth, state and territory governments, we will soon have better insights into previously little-understood areas such as the effectiveness of interventions aimed at men who perpetrate violence and a framework to guide violence prevention efforts.12 ANROWS now also leads the National Community Attitudes towards Violence against Women Survey (‘NCAS’), an ongoing research project that measures Australians’ awareness of, and attitudes towards, men’s violence against women, support for gender equality and bystander behaviour. The 2013 NCAS contained some concerning findings. For example, 43 per cent of respondents agreed that ‘rape results from men not being able to control their need for sex’.13 Equally concerning was the number of survey respondents supporting male dominance in relationships, whereby 28 per cent of respondents agreed that ‘women prefer a man to be in charge of the relationship’.14 II TURNING RESEARCH AND DATA
INTO PRACTICAL SOLUTIONS
This data and research is invaluable to organisations such as White Ribbon Australia. It clearly shows that violence against women is a significant social problem, and that addressing community attitudes is vital to creating change.
4 See, eg, Walter S DeKeseredy
and Martin D Schwartz, ‘Thinking Sociologically about Image-Based Sexual Abuse: The Contribution of Male Peer Support Theory’ [2016] (October–December) Sexualization, Media, and Society 1, 1.
5 Australian Bureau of Statistics,
4906.0 - Personal Safety, Australia, 2012 (11 December 2013) Perpetrators of Violence <http:// www.abs.gov.au/ausstats/abs@. nsf/Lookup/4545E1A0AF026A D5CA257C3D000D820D? opendocument>.
6 Ibid. 7 See Andy Chan and Jason Payne,
‘Homicide in Australia: 2008–09 to 2009–10: National Homicide Monitoring Program Annual Report’ (Monitoring Report No 21, Australian Institute of Criminology, 2013) 18 <http://www.aic.gov.au/ publications/current%20series/ mr/21-40/mr21.html>.
8 Australian Institute of Health and
Welfare, Specialist Homelessness Services: 2015–16: Clients Who Have Experienced Domestic and Family Violence (2016) National Library of Australia <http://webarchive.nla.gov.au/ gov/20170421060551/http:// www.aihw.gov.au/homelessness/ specialist-homelessnessservices-2015-16/domesticviolence/>.
9 Deborah Loxton et al, ‘Intimate
Partner Violence Adversely Impacts Health over 16 Years and Across Generations: A Longitudinal Cohort Study’ (2017) 12(6) PLOS ONE 1 <https://www.ncbi.nlm.nih.gov/ pubmed/28582406>.
10 Australian Domestic and Family
Violence Clearinghouse and the University of New South Wales, The Impact of Domestic Violence on Children: A Literature Review (Report, The Benevolent Society, 1 August 2011) 3–4 <http://www. adfvc.unsw.edu.au/documents/ ImpactofDVonChildren.pdf>.
11 Department of Social Services,
above n 1.
12 ANROWS has funded 11 projects
under its perpetrator interventions research program exploring system effectiveness, effectiveness of interventions, models to address diversity of perpetrators and interventions developed by, with and for Aboriginal and Torres Strait Islander communities: Australia’s National Research Organisation for Women’s Safety, ‘ANROWS Perpetrator Interventions Research Priorities 2017–19: Summary December 2016’ (Research Program, 20 December 2016) 2.
13 VicHealth, ‘Australians’ Attitudes
to Violence against Women: Findings from the 2013 National Community Attitudes towards Violence against Women Survey (NCAS)’ (Report, September 2014) 12 <https://www.vichealth. vic.gov.au/media-and-resources/ publications/2013-nationalcommunity-attitudes-towardsviolence-against-women-survey>.
35
PREVENT MEN’S VIOLENCE AGAINST WOMEN
White Ribbon Australia engages men to prevent men’s violence against women. Through campaigns and programs,15 we highlight the role men can play alongside women in this social movement. Our rationale in doing this is that men speaking to other men about violence and abuse against women can be a powerful catalyst for change.16 As mentioned above, engaging men in the prevention of men’s violence against women has been contested. Feminist women pioneered efforts to prevent men’s violence against women and the increased presence of men in initiatives such as White Ribbon is seen by some as potentially reproducing the inequalities at the heart of men’s violence against women, further marginalising and silencing women.17 Research suggests that for men to be effective allies in the prevention of men’s violence against women, they need to understand the structural causes of men’s violence against women, their role in reproducing gender inequality, and the effects of them being part of the dominant privileged, masculinity.18 Developing an understanding of this for the general male population and operationalising effective mechanisms to drive change has been a key challenge for White Ribbon Australia. The White Ribbon male engagement framework, seen in Figure 1, is evidence based19 and supported by ongoing research and evaluation. In addition to the research outlined previously, we commission annual market research to give us updated and more immediate insights into what Australian men think about men’s violence against women and how they conceptualise their role in its prevention. For example, in 2016, we ran a series of focus groups with men. The focus groups explored their definition of violence and abuse and how they conceptualised the role they could play in ending men’s violence against women. The research reiterated findings of previous surveys and focus groups we have run: most men understand what constitutes violence and abuse, but are still unsure about the scale and significance of the issues. Importantly, most men do not identify with perpetrators, have good intentions and respond to positive and direct social marketing approaches that show them how to take action against violence. Community-driven domestic violence campaigns that appeal to ‘real men’ or ‘good men’ are a manifestation of this fact. However, they are widely considered problematic and counter to the goals of violence prevention
to Violence Against Women – Full Technical Report’ (September 2014) 62 <https://www.vichealth.vic. gov.au/-/media/ResourceCentre/ PublicationsandResources/ PVAW/NCAS/NCASTechnicalReport_2014.pdf>.
Where
SCHOOLS
15 In addition to the White Ribbon
campaign, which culminates in White Ribbon Day, White Ribbon Australia runs primary prevention programs in schools and workplaces, offers training workshops, forums and eLearning, and engages men and women through the Ambassador and Advocate programs.
WORK PLACES
ONLINE
16 Michael Flood, ‘Where Men Stand:
Men’s Roles in Ending Violence Against Women’ (Research Series No 2, White Ribbon Australia, 2010) 10.
TERTIARY EDUCATION
17 Ann Carrington, ‘Accountability:
Whose Responsibility Is It? A Commentary on ‘Men as Allies in Preventing Men’s Violence against Women: Principles and Practices for Promoting Accountability’ in Bob Pease, ‘Men as Allies in Preventing Men’s Violence against Women: Principles and Practices for Promoting Accountability’ (White Ribbon Research Series, March 2017) 28.
SPORTING CLUBS
FRIENDSHIP GROUPS
PLACES OF WORSHIP
18 Pease, above n 3, 6–7, 21–3. 19 Moira Carmody, Michael Salter
and Geir H Presterudstuen, ‘Less to Lose and More to Gain?: Men and Boys Violence Prevention Research Project Final Report’ (Research Report, University of Western Sydney, July 2014) <https://www.women.nsw.gov. au/__data/assets/file/0019/300619/ PDF_2_Final_Report_Men_ and_Boys.pdf>; Flood, above n 16; Michael Salter, The Role of Men and Boys in Preventing Violence against Women and Children (26 April 2016) YouTube <https://www.youtube.com/ watch?v=WCAUqXDgidU>.
What
How
Changing attitudes and behaviours through:
By recognising diverse masculinities There are many ways of ‘being a man’ – let’s explore them and understand their implications
• Ambassadors • Workplace Accreditation Program • Schools – Breaking the Silence • Community events • Community partnerships • Corporate partnerships • Diversity Reference Groups • Advisory groups • eLearning • Advocates program • Safe active bystander training • Social Marketing • White Ribbon Committees • White Ribbon Day • White Ribbon Night • White Ribbon social media/website
By appealing to existing aspirations What kind of father, partner, employer, community member do you want to be? By leveraging peer networks and supporting/researching message delivery This is what you can do when a friend makes a sexist comment. By recognising disadvantage Male privilege may be the last form of ‘power’ you have. It can be hard to let that go.
FIGURE 1: WHITE RIBBON AUSTRALIA FRAMEWORK FOR ENGAGING MEN AND BOYS. 37
Why
Change norms and attitudes
III WHITE RIBBON AUSTRALIA: ENGAGING MEN TO
14 VicHealth, ‘Australians’ Attitudes
Address structural gender inequality
This information guides our organisational strategy and program design, implementation and evaluation. It also informs the White Ribbon social impact measurement framework; we monitor this data to measure changes over time at the population level and use relevant measures from the NCAS to track the performance of our programs and activities. There is no point at which this research can stop; the more we understand about men’s violence against women through research and policy and the more women share their stories, the more gaps we can identify and address in our knowledge and practice. Regardless of these gaps, there is an ethical imperative to act using available information to develop and implement appropriate and effective interventions. While this pragmatism is easy to criticise, we cannot wait until we know everything about men’s violence against women before we try to prevent it from happening in the first place.
informed by feminist frameworks and research that identify gender inequality as the root cause of gender violence.20 The challenge is to balance the reality of the everyday man with these frameworks and research. White Ribbon campaigns and programs are designed to meet men at their stage of the culture change journey, and can be articulated as simply as ‘real men don’t hit women’. By referring simply to physical violence, which assists with ‘getting men in the door’, we are able to educate men on the nature and extent of men’s violence and abuse against women and equip them with the knowledge and tools they need to become agents of social change. Most importantly, we get to a point where we can challenge the simplistic ‘good man vs. perpetrator’ dichotomy and encourage men who do not use violence to reflect on how male privilege manifests in their lives and is a driver of gender inequality. IV ENGAGING MEN: AN EFFECTIVE APPROACH?
In his review of work with men to end violence against women, Flood notes the limited information available on the effectiveness of interventions that work with men to end violence against women.21 This reflects a general challenge for organisations in the not-for-profit sector, which struggle to undertake ‘gold-standard’ evaluation work for a variety of reasons, including limited resources and lack of personnel with evaluation expertise.22 While White Ribbon Australia faces the same personnel and resource restrictions, we have a strong commitment to building social impact measurement and are embedding data collection across our activities and programs in an effort to contribute to the evidence base on effective male engagement. Data from a recent survey of White Ribbon supporters23 found high levels of awareness about men’s violence against women and evidence of pro-social attitudes and behaviours. For example:
20 Castelino, above n 3, 23–4; Flood,
above n 3, S169–S170; Michael Salter ‘Real Men Do Hit Women: The Violence at the Heart of Masculinity’ (2016) 75(1) Meanjin 97.
21 Flood, above n 3, S160–S161. 22 See, eg, Jane Gibbon and Colin
Dey, ‘Developments in Social Impact Measurement in the Third Sector: Scaling Up or Dumbing Down?’ (2011) 31 Social and Environmental Accountability Journal 63; Belinda Luke, ‘Statement of Social Performance: Opportunities and Barriers to Adoption’ (2017) 37 Social and Environmental Accountability Journal 118.>.
information on the nature and extent of this violence helps fill in the blanks, it also shines a light onto issues we are yet to understand. To take action with imperfect information is challenging, but essential if we are to make inroads into this population-level issue of men’s violence against women. This pragmatism is also problematic for some groups reluctant to engage with and fully understand a social movement that they see as possibly at odds with feminist social change theory. For organisations like White Ribbon, this requires a learning approach to program development and implementation that sometimes sits uncomfortably alongside analysis of the social problem.
23 In December 2016 to January
2017, White Ribbon supporters, including Ambassadors, Advocates, donors and event organisers were surveyed on a range of issues, including their knowledge and attitudes to men’s violence against women. A total of 1,533 surveys were completed, including 529 responses from Ambassadors.
• 80 per cent of Ambassadors strongly agree that stopping men’s violence against women starts with men changing their behaviour, versus 69 per cent of non-Ambassadors. • Ambassadors had a greater awareness of the extent of men’s violence against women than non-Ambassadors. • Ambassadors are more likely to assist a person experiencing violence than non-Ambassadors. • Ambassadors have a lower tolerance for sexually explicit jokes, sexist jokes and sexist language than non-Ambassadors. To enhance the robustness and reliability of program and campaign data, White Ribbon is developing a social impact measurement framework. We will collect data against key performance indicators at the commencement of an intervention, its conclusion and post-intervention. Along with the findings of independent evaluations of our programs, this data will be used to improve our work and will be shared with stakeholders. This is a demonstration of the pragmatic approach to learning and practice that characterises many organisations working to achieve social justice. V
CONCLUSION
Considerable investment in research, policy and feminist theory deepens our understanding of men’s violence against women and informs our prevention strategy and practice. While more 39
INQUIRY INERTIA: INDIGENOUS SERVICES STILL BEARING THE WEIGHT AFTER DECADES OF GOVERNMENT INACTION
Michaela Vaughan is a sixth year Law/Arts (Honours) student at the University of New South Wales. Michaela completed a three-week internship at Danila Dilba Health Service, Darwin in July 2017. With thanks to Delsey Tamiano, Adelaide Soltysik and the policy team at Danila Dilba for all their assistance.
The image you have just seen isn’t from Guantanamo bay or Abu Ghraib but Australia in 2015. A boy, hooded, shackled, strapped to a chair and left alone. It is barbaric.1
1 Australian Broadcasting
Michaela Va�ghan
Corporation, ‘Australia’s Shame’, Four Corners, 25 July 2016 (Sarah Ferguson) <http:// www.abc.net.au/4corners/ stories/2016/07/25/4504895. htm#transcript>.
2 Matt Doran and James Dunlevie,
‘Four Corners: PM Turnbull to Set Up Royal Commission into Mistreatment of Children in Detention’, ABC News (online), 26 July 2016 <http://www.abc.net.au/ news/2016-07-26/turnbull-callsfor-royal-commission-into-dondale/7660164>.
3 Attorney-General for Australia,
‘Royal Commission into the Protection and Detention of Children in the Northern Territory – Reporting Date Extended,’ (Media Release, 30 August 2017) <https:// www.attorneygeneral.gov.au/ Mediareleases/Pages/2017/ ThirdQuarter/Royal-Commissioninto-the-protection-and-detentionof-children-in-the-NorthernTerritory-reporting-date-extended. aspx>.
4 Commonwealth, Royal Commission
into the Protection and Detention of Children in the Northern Territory, The Interim Report (2017) 7.
On Monday 25 July 2016, the Australian Broadcasting Corporation’s Four Corners program aired the episode ‘Australia’s Shame’. The images of horrifying mistreatment of children in Darwin’s Don Dale Youth Detention Centre (‘Don Dale’) sent shockwaves through Australian society overnight. The revelations were of such a magnitude that Prime Minister Malcolm Turnbull announced a Royal Commission into juvenile detention in the Northern Territory the following day.2 The findings from the Royal Commission into the Protection and Detention of Children in the Northern Territory (the ‘Royal Commission’) are due to be handed down on 17 November 2017.3 Many are sceptical of the likelihood that this inquiry will actually spark institutional reform. This is not surprising – the interim report released by the Commonwealth AttorneyGeneral’s Department found that there had been ‘50 earlier reports and inquiries on the issues covered by the Commission’s Terms of Reference’.4 As Senior Counsel Assisting, Peter Callaghan SC said in his opening remarks on the first sitting day of public hearings on 11 October 2016: It invites the question as to whether there is a need to confront some sort of ‘Inquiry mentality’, in which investigation is allowed as a substitution for action, and reporting is accepted as a replacement for results.5
5 Peter Callaghan, ‘Royal
Commission into the Protection and Detention of Children in the Northern Territory’ (Speech delivered at Court 11, Northern Territory Supreme Court, 11 October 2016) 4 <https:// childdetentionnt.royalcommission. gov.au/NT-public-hearings/ Documents/transcripts-2016/ Openings-Senior-CounselAssisting.pdf>.
University of Canberra Professorial Fellow Michelle Grattan writing for The Conversation observed that: It is surely extraordinary it took a Four Corners program, excellent as it was, to force the attention of Northern 41
Territory and federal politicians on to the scandal of the NT detention system when most of the evidence had been before their eyes for a long time.6 Grattan’s comments included reference to the report released by the Northern Territory Children’s Commissioner in 2015, specifically investigating the services provided at Don Dale and the incidents that sparked the use of tear gas and other controversial restraints on detainees in August 2014.7 At the time, Northern Territory Corrections Commissioner Ken Middlebrook said the investigation ‘is certainly not in-depth and doesn’t really paint the whole picture of what happened’.8 Middlebrook resigned in 2015 after a convicted murderer and rapist escaped from a prison work camp and due to a number of problems at both Darwin’s adult prison and Don Dale.9 In spite of the numerous government-led inquiries and reports into Indigenous youth detention and the criminal justice system, it would seem that Indigenous community organisations are at the forefront of advancing social outcomes for their own people. Organisations such as Aboriginal Medical Services Alliance Northern Territory (‘AMSANT’), Danila Dilba Health Service (‘Danila Dilba’), Warlpiri Youth Development Aboriginal Corporation (‘WYDAC’), Northern Aboriginal Alliance Justice Agency (‘NAAJA’) and Central Australian Aboriginal Legal Aid Service (‘CAALAS’) have been crucial bodies that have advocated for Aboriginal self-determination and culturally appropriate services in the Northern Territory. Unfortunately, it appears that long-term commitments from governments to tackle systemic failures as a result of these reports and inquiries so far have been lacking. Throughout July 2017, I completed an internship at Danila Dilba and became familiar with the efforts of some Indigenous organisations working in the Northern Territory first hand. I attended Darwin’s National Aborigines and Islanders Day Observance Committee (‘NAIDOC’) week march10 under Danila Dilba’s banner and the resounding message was clear: seize this political moment to create lasting change to better the outcomes for Indigenous people in this country. Thomas Mayor, a Torres Strait Islander man born and raised on Larrakia Land (Darwin) and Northern Territory Branch Secretary of the Maritime Union of Australia, spoke to the crowd of attendees about the need to capitalise on the current governmental focus on Indigenous people, citing the Royal Commission, the ‘Uluru Statement from the Heart’11 and the Referendum Council Report and Recommendations12 towards a referendum on a First Nation’s Voice to Parliament. He acknowledged that, although there had been many inquiries before, this is a unique time. He urged everyone to ‘join the community in fighting to see change’ in order to ‘build a better future for our mob’.13 He pressed the importance of ‘unity’ amongst Indigenous people to avoid ‘this opportunity being lost’. It is promising that amidst the submissions and hearings, the Northern Territory government has not waited for the Royal Commission’s recommendations to begin changing how things are managed at Don Dale. Within days of the Four Corners story breaking, Territory Families contracted Danila Dilba to assist in providing services to the children and young people in detention for an initial period of six months.14 This was instigated under Adam Giles’ Country Liberal Party and has been continued by the Labor Party who won the Northern Territory election in August 2016. There is hope among justice agencies, members of the legal profession and sections of the broader community that with bi-partisan support, governments
6 Michelle Grattan, ‘Evidence of NT
Detention Centre Abuse Was There for All to See’, The Conversation (online), 26 July 2016 <https:// theconversation.com/evidenceof-nt-detention-centre-abuse-wasthere-for-all-to-see-63084>.
7 Office of the Children’s
Commissioner (Northern Territory), ‘Own Initiative Investigation Report Services Provided by the Department of Correctional Services at the Don Dale Youth Detention Centre’ (Media Release, 17 September 2015) 1 <https://occ.nt.gov.au/__data/ assets/pdf_file/0004/440860/ media-release-childrenscommissioner-170915.pdf>.
8 Zach Hope, ‘Northern Territory
Corrections Boss Hits Back at the Children’s Commissioner’s Investigation into Don Dale Youth Detention Centre Fracas’, NT News (online), 18 September 2015 <http://www.ntnews.com.au/ news/northern-territory/northernterritory-corrections-boss-hits-backat-the-childrens-commissionersinvestigation-into-don-dale-youthdetention-centre-fracas/news-stor y/705d80a51ca855362f804c0be7 10fdbe>.
9 Xavier La Canna and James
Oaten, ‘NT Corrections Boss Ken Middlebrook Quits in Wake of Murderer, Rapist Edward Horrell’s Escape from Prison Work Camp’ ABC News (online), 29 December 2015 <http://www. abc.net.au/news/2015-11-12/ntcorrections-boss-ken-middlebrookquits/6935512>.
10 ‘NAIDOC Week celebrations are
held across Australia each July to celebrate the history, culture and achievements of Aboriginal and Torres Strait Islander peoples’: National Aborigines and Islanders Day Observance Committee, About NAIDOC Week (2016) NAIDOC < http://www.naidoc.org.au/about>.
11 First Nations National Constitutional
Convention, ‘Uluru Statement from the Heart’ (26 May 2017).
12 Referendum Council, ‘Final Report
of the Referendum Council’ (30 June 2017) 2.
13 Thomas Mayor, (Speech delivered
at the NAIDOC Week March, Darwin, 7 July 2017).
14 Territory Families is the Northern
15 Australian Institute of Health and Welfare, ‘Northern Territory: Youth Justice Supervision in 2015–16’ (Youth Justice Fact Sheet No 77, 2017) 2 <https://www. aihw.gov.au/getmedia/ff88a3b4d9a6-4fb3-add2-82fd9799b55a/ YJA-2015-16-NT.pdf.aspx>. ‘The rate of Indigenous young people aged 10–17 under supervision on an average day in the Northern Territory was 120 per 10 000, compared with 5 per 10 000 for non-Indigenous young people’. 16 Northern Territory Department
of Correctional Services, ‘Annual Statistics 2014–15’ (Report, 2016) 9 <https://justice.nt.gov.au/__data/ assets/pdf_file/0009/269793/201415-NTDCS-Annual-Statistics.pdf>.
17 Australian Institute of Health
and Welfare, ‘Youth Detention Population in Australia 2016’, (Bulletin 138, 2016) 13 <https:// www.aihw.gov.au/getmedia/ fe88e241-d0a2-4214-b97f24e7e28346b6/20405.pdf. aspx?inline=true>.
18 Ibid 7. 19 Department of Children and
Families, ‘Annual Report 2015–16’ (Northern Territory Government, 30 September 2016) 26 <https://territoryfamilies.nt.gov.au/__ data/assets/pdf_file/0010/379594/ Department-of-Children-andFamilies-annual-report-2015-16. pdf>.
20 Katharine Murphy, ‘Indigenous
Child Removal Rate Risks “Second Stolen Generation”, Kevin Rudd Warns’, The Guardian (online), 13 February 2017 <https://www. theguardian.com/australianews/2017/feb/13/indigenous-childremoval-rate-risks-second-stolengeneration-kevin-rudd-warns>.
21 Danila Dilba Experience, About Us,
Danila Dilba Health Service <http:// www.daniladilbaexperience.org.au/ about-us.html>.
22 Danila Dilba, ‘A Blueprint For
Change Part I: Youth Justice’ (Submission to the Royal Commission into the Protection and Detention of Children in the Northern Territory, May 2017) 1 (on file with author).
23 Interview with Delsey Tamiano
(Darwin, 21 July 2017).
will deliver authentic and lasting change to the lives of Indigenous children and young people. Juvenile detention in the Northern Territory is a race issue. Despite Indigenous 10–17 year olds comprising only 45 per cent of the Northern Territory’s total youth population,15 94 per cent of receptions into youth detention in the Northern Territory during 2014–2015 were Indigenous detainees.16 The Northern Territory also has the highest rate of detention of children and young people in Australia, with almost 16 per 10 000 children under supervision on an average day based on June 2016 quarter statistics, compared to the other states which range from approximately one to five children under supervision in the same quarter.17 Over half of Australian children incarcerated in the June quarter 2016 had yet to be sentenced, with the child or young person awaiting court proceedings.18 The rates of Indigenous children in out of home care in the Northern Territory have dramatically increased in the last few years, while non-Indigenous population figures have had minimal fluctuations. Between 2011 and 2012, the number of Indigenous children placed in out of home care was 573, and by 2015–16 this had increased to 908.19 In May 2017, former Labor Prime Minister Kevin Rudd delivered a speech marking the ninth anniversary of the national apology to the Stolen Generation. He advocated for a wholesale revision of Indigenous child removal policies, stating: ‘We do not want to see the emergence of a second stolen generation, not by design, but by default’.20 Since August 2016, Danila Dilba has been contracted to offer a new regime of outreach services to the detainees in Don Dale. Danila Dilba is an Indigenous medical service that is community controlled and provides a range of primary health and specialist health services.21 This includes health promotion education, counseling, allied health, drug and alcohol services, and chronic disease care. Danila Dilba is uniquely placed to service the local Indigenous community from which most juvenile detainees come. It has trusted relationships with that community, with a client base of more than of 60 per cent of Greater Darwin’s Region’s Indigenous population (amounting to over 12,000 people).22 Whilst I was interning at Danila Dilba, I spoke with the Senior Youth Engagement Officer Delsey Tamiano, who believes there is no one simple solution to resolve the social issues affecting Indigenous youths. However, she is adamant in her belief that the structural change required in the youth justice and care and protection services in the Northern Territory needs to be Indigenous-driven, stating: We know what we should be doing for our mob...We are best placed to provide what young people need, as we are here for the long haul and are offering a continuity of care. We have been leading the way for a long time and have a presence in young people’s lives that extends into their adulthood.23
Territory government department responsible for youth justice and the management of Don Dale Youth Detention Centre.
Of late, Danila Dilba has expanded to include a law and policy team which lobbies government, meets with stakeholders and writes submissions to government inquiries. Chief Executive Officer Olga Havnen recognised that there was an opportunity for her organisation to provide important insights informed by Danila Dilba’s intimate relationships with Indigenous communities and medical expertise and thus has been a key advocate for Indigenous people throughout the Royal Commission. In their youth justice submission, they championed treatment programs centered on the needs and wellbeing of 43
children and young people as a primary objective.24 They attributed the degree of over-representation of Indigenous people in the Northern Territory youth justice system to both the underlying risk factors that give rise to offending and reoffending and to the structure and operation of the Northern Territory youth justice system. Other organisations like NAAJA have echoed similar sentiments in other inquiries such as their submissions to the 2011 Review of the Northern Territory Youth Justice System25 and the 2014 Review of the Northern Territory Youth Detention System,26 the second of which they co-authored with Central Australian Aboriginal Legal Aid Service (‘CAALAS’) and Northern Territory Legal Aid Commission (‘NTLAC’). The Tivendale School at Don Dale reported that more than 90 per cent of students at the school were Aboriginal, with English as a second language.27 All students were reported as having ‘extremely low levels of literacy and numeracy’, and many present with diagnosed learning disabilities and social, emotional and psychological issues including: Fetal Alcohol Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Autism Spectrum Disorder, histories of neglect, trauma and substance abuse, speech, hearing and vision disability.28 The Interim Report, released by the Royal Commission, acknowledged the continued impact of intergenerational trauma on Indigenous people within the Northern Territory: Aboriginal people have experienced trauma stemming from the results of colonisation and the loss of culture and land, as well as government policies such as the forced removal of children. This trauma has had a negative impact on cultural identity, which consequently has reduced the capacity of Aboriginal people to participate fully in their own lives and community. The fact that so many Aboriginal children and young people enter out-of-home care and youth detention in the Northern Territory is a consequence of these factors.29 Danila Dilba submitted to the Royal Commission that there is a failure to recognise the extent to which health issues, disability and the impact of trauma on socio-emotional development may contribute to offending behaviour and will perpetuate ‘more of the same’, that is, recidivism.30 Danila Dilba further added that the degree of overrepresentation in the Northern Territory Youth Justice system is a reflection of the structure and operation of that system. The system itself compounds over-representation and the likelihood of further offending and detention through: • The lack of mechanisms for early identification of young people at risk of offending or reoffending. • The operation of police powers to determine whether to divert from the youth justice system. • A lack of suitable diversionary programs and alternatives to institutional incarceration. • The high proportion of children and young people held in detention on remand. • The inability of the system to direct young people into intervention and treatment programs until after they have been dealt with by the court. • Failure to provide appropriate treatment and support to children and young people in regard to their health, behavioural issues or past trauma.31
24 Danila Dilba, Submission to the
Royal Commission, above n 22.
25 NAAJA, Submission to the Youth
Justice Review Panel (Northern Territory Government), Review of the Northern Territory Youth Justice System, July 2011 <http:// www.naaja.org.au/wp-content/ uploads/2014/05/Youth-JusticeReview-Submission.pdf>.
26 CAALAS, NAAJA and NTLAC,
‘Review of the Northern Territory Youth Detention System’ (Submission to the Northern Territory Government, November 2014) <http://www.naaja.org.au/ wp-content/uploads/2014/05/ Joint-CAALAS-NAAJA-and-NTLACsubmission-to-the-IndependentReview-of-You....pdf>.
27 Tivendale, ‘Tivendale School
Profile and Fact Sheet’ (Executive Summary, Department of Education Northern Territory, 6 December 2016) 5 <https://childdetentionnt. royalcommission.gov.au/NTpublic-hearings/Documents/ evidence-2017/evidence16march/ Exh-089-002.pdf>. Tivendale is located within Don Dale Youth Detention Centre, for detainees 10– 17 years old who are remanded or sentenced to a period of detention.
28 Ibid. 29 Royal Commission, above n 4, 35. 30 Danila Dilba, above n 22, 1, 7. 31 Ibid 3.
32 Royal Commission, above n 4, 3. 33 The Throughcare model is a
voluntary program that helps Indigenous detainees ‘stay out of trouble’ once they have been released from detention: see, eg, NAAJA, Throughcare Project <http://www.naaja.org.au/ourservices/indigenous-throughcareproject/>.
34 Interview with Delsey Tamiano
(Darwin, 21 July 2017).
35 Ibid. 36 For example, Darwin’s Timmy
Duggan, a former NBL basketball player, runs one such program. He is the founder of ‘Hoops 4 Health,’ a program promoting fitness and health education: Hoops 4 Health Aboriginal Corporation (14 April 2014) Australian Indigenous HealthInfoNet <http://www. healthinfonet.ecu.edu.au/keyresources/organisations?oid=1272>.
The evidence presented to the Royal Commission so far reveals a youth detention system that ‘is likely to leave many children and young people more damaged than when they entered’.32 In the last 12 months, Danila Dilba has expanded their original contract with Territory Families, which allowed them to observe, monitor and report the experiences of detainees in Don Dale, to now include offering court support, recreational activities, advocacy, health checks, individual appointments, referrals, and a Throughcare model of post-release support.33 Danila Dilba visits Don Dale two to three times a week providing a mixture of individual and group sessions. Delsey Tamiano sees her role as primarily one of building relationships: ‘As an organisation, we are concerned with health and wellbeing, but for the children in Don Dale we want to connect, create trust, and provide a good mentoring role’.34 Tamiano notes the crucial work they do as advocates for detainees in Don Dale: Sometimes the children are afraid to make complaints about their treatment in detention, due to fear of further victimization. Although we always encourage detainees to lodge a formal complaint, with their consent we can notify Territory Families on their behalf.35
37 Transcript of Proceedings, Royal
Commission into the Protection and Detention of Children in the Northern Territory (Commissioner White and Commissioner Gooda, 12 May 2017) 3889.
38 Ibid 3893. 39 Ibid 3896.
Danila Dilba facilitates a range of recreational activities for children in Don Dale and those recently released.36 NAAJA has also been instrumental in post-release programs for youth, working with Don Dale detainees since 2009.37 Throughout the Royal Commission hearings, NAAJA representatives commented on their frustrations with the exit plans created by the internal Don Dale caseworkers, in particular due to their lack of comprehensiveness. Project Coordinator of NAAJA Throughcare program Samantha Taylor-Hunt stated: I hesitate to say that they’re not being done, but we’re not seeing them, and we’re not feeling like they’re thorough in their putting together strong post-release plans particularly. So exit plans are designed to lead that youth back into community, is my understanding, and we rely much more heavily on our case management plans that our youth worker puts together …38 For detainees who are released after being on remand, NAAJA has partnered with Danila Dilba to provide appropriate care for their social and emotional needs. In the Royal Commission hearings, manager of NAAJA Throughcare program Thomas Quayle remarked: our area or expertise is post-release caring and Throughcare support. You know, we are not therapeutic. So partnering with Danila Dilba allows us then to ensure we have got another member of staff in place who is able to take care of the therapeutic needs of a young person and is well supported by an organisation for whom that is the area of expertise.39 The Royal Commission is yet to hand down their recommendations, so it remains to be seen what these will be and whether they will be implemented, and if so, what their impact will be. It is clear however, that Indigenous-led efforts need to be at the heart of lasting reform. While there are mixed feelings among stakeholders whether this Royal Commission will deliver the much-needed change that the youth detention 45
and care space requires, for Tamiano, it is imperative to not lose sight of the individual child in the system. With her years of experience working with Indigenous children, Tamiano recalls a Back2Bush program that Danila Dilba used to run that took young people out of Darwin to Kakadu to go fishing and camping, often for the first time:
40 Interview with Delsey Tamiano
(Darwin, 21 July 2017).
I remember looking back at photos from that day, and all I could see were the smiling faces of these children. Governments talk about statistics but you cannot measure a smile on a child’s face. It is important to keep in mind that we can only do what we can – we can’t save the world but we can make a difference. Don’t give up.40
47
END12 – A CAMPAIGN TO DECRIMINALISE ABORTION IN NEW SOUTH WALES
Dr Mehreen Faruqi is a Greens NSW MP and spokesperson for women.
1 ‘12’ is a reference to Division 12
(attempts to procure abortion) of the Crimes Act 1900 (NSW).
2 Abortion Law Reform
Mehre�n Faruqi
(Miscellaneous Acts Amendment) Bill 2016 (NSW).
3 Crimes Act 1900 (NSW) div 12. 4 R v Wald (1971) 3 DCR (NSW) 25.
I INTRODUCTION
Campaigners for abortion rights have been told again and again to wait for progressive governments to be in power before making any moves to reform the law on abortion. Indeed, during the recent three-year ‘End12’1 campaign around the bill to decriminalise abortion and create safe access zones in New South Wales,2 its proponents were told numerous times and in no uncertain terms to not push for this change under a LiberalNational Government. They were told it was not the right time, and if these laws were opened up for debate, access to abortion could be further restricted under the conservatives. Social change, especially for women, has always been hard fought for, and having a sympathetic government willing to change legislation for the better is only one part of this story. The likelihood of achieving reform increases immensely if there are proactive peoples’ movements demanding action so that change becomes an inevitability. Abortion law reform is no different. Not even putting the issue on the political or public agenda, for fear it may not be successful, simply misses the point. It is only through building awareness for the need for change and building momentum within the community that pressure can be put on elected representatives to overhaul outdated legislation. It is necessary to make it the right time for justice, not to simply wait for it to happen. In the 21st century abortion is still a criminal offence in NSW.3 While people have access to pregnancy terminations, these are only available through exceptions to the law made by a decision of the District Court more than 40 years ago.4 This grey area of the law only contributes to the uncertainty surrounding the provision and procurement of abortion services in this state. Laws need to be as clear and unambiguous as possible. For me and other advocates of decriminalising abortion it is unacceptable that we are asked to continue to remain silent when 49
women and all people who seek abortion risk criminal liability and are faced with limited access to a safe medical procedure. II CURRENT LAW AND ITS REPERCUSSIONS
In Australia, many jurisdictions have moved to repeal criminal penalties for abortion, including Tasmania,5 the Australian Capital Territory,6 Victoria7 and most recently the Northern Territory.8 These jurisdictions have also enacted safe access zones outside premises where abortion services are provided. Queensland and NSW are the only two states where abortion offences remain unchanged in their statute laws.9 In New South Wales, Division 12 of Part 3 of the Crimes Act 1900 (NSW) is entirely devoted to ‘attempts to procure [an] abortion’ and includes offences that carry a five to ten-year prison term for women and those who provide abortions.10 For women in NSW, access to abortion is available under the 1971 District Court ruling of Levine J in the R v Wald case, which established that abortions would be lawful if there was ‘any economic, social or medical ground or reason which in [the jury’s] view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health’.11 Kirby J, in a higher court, later extended Levine J’s consideration of ‘serious danger’ to include social and economic factors affecting, or that could be reasonably expected to affect, the mother’s physical and psychological health.12 Despite the provision of these rulings, the undeniable reality is that abortion remains a crime in statute law. People accessing abortions in New South Wales, their doctors and health practitioners, remain vulnerable to the full force of criminal law, including up to a decade in jail, for attempting to procure one of the most common and safest medical procedures performed in our state. Many doctors do not perform abortions due to fear of persecution and prosecution and it is not routinely provided in public hospitals, resulting in the procedure being hard to access and expensive, especially for rural and regional women.13 Aboriginal and Torres Strait Islander women, immigrant women and those from low socio-economic backgrounds have less access to abortion because it is criminalised.14 Criminalisation contributes to the ongoing stigma and shame associated with abortion. This is only exacerbated by the continued harassment of patients by anti-choice groups protesting outside clinics,15 putting at risk their health and safety. It is inconsistent that medical privacy is accepted for all procedures but so often breached for abortion. III ABORTION LAW REFORM (MISCELLANEOUS
ACTS AMENDMENT) BILL 2016: A MATTER OF HEALTH AND RIGHTS
The Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 (NSW) is the first ever bill introduced to the NSW Parliament to decriminalise abortion.16 It was designed to bring archaic legal provisions in line with modern medical practice, modern expectations of reproductive health and the right to bodily autonomy. It was also about the rights of a patient to make their own healthcare choices with full certainty of the law and without the shadow of criminality. While positioning abortion law reform as a feminist campaign that responded to historical and entrenched sexism against women, this Bill was deliberately phrased in gender-neutral terms to acknowledge
5 Reproductive Health (Access to
Terminations) Act 2013 (Tas) ss 4–8.
6 Health Act 1993 (ACT) ss 80–4. 7 Abortion Law Reform Act 2008 (Vic)
ss 4–8.
8 Termination of Pregnancy Law
Reform Act 2017 (NT) ss 6–13.
9 Tom Gotsis and Laura Ismay,
‘Abortion Law: A National Perspective’ (Briefing Paper No 2, NSW Parliamentary Research Service, Parliament of NSW, 2017) 11.
10 Crimes Act 1900 (NSW) ss 82–4. 11 (1971) 3 DCR (NSW) 25, 29. 12 CES v Superclinics Australia Pty
Ltd (1995) 38 NSWLR 47, 60.
13 Christine Forster and Vedna Jivan,
‘Abortion Law in New South Wales: Shifting from Criminalisation to the Recognition of the Reproductive Rights of Women and Girls’ (2017) 24 Journal of Law and Medicine 850.
14 Ibid 851. 15 Amelia Paxman, ‘“Pretty Tense”:
What it’s Like to Run the Gauntlet of Anti-Abortion Protesters’ The Sydney Morning Herald (online), 6 June 2017 <http://www.smh.com. au/lifestyle/news-and-views/newsfeatures/pretty-tense-what-its-liketo-run-the-gauntlet-of-antiabortionprotesters-20170605-gwkqbr.html>.
16 Wendy Harmer, Interview with
Mehreen Faruqi (Radio Interview, 8 May 2017) <http://www.abc.net.au/ radio/sydney/programs/mornings/ abortion/8505930>.
17 Children by Choice, Australian
Abortion Law and Practice (5 July 2017) <https:// www.childrenbychoice. org.au/factsandfigures/ australianabortionlawand practice>.
18 #END12, Endorsements <http://
www.end12.org.au/endorsements>.
19 Lonergan Research, ‘Public Views
on Abortion – NSW’ (Survey Report, September 2015) <http:// www.mehreenfaruqi.org.au/ wp-content/uploads/2015/09/788The-Greens-NSW-Abortion-SurveyReport-21.09.2014.pdf>.
that a range of people need to access reproductive health care, including non-binary persons and transgender men. The Bill proposed changes to three NSW statutes to address the problems of current law. A SCHEDULE 1: ABOLITION OF ABORTION OFFENCES IN CRIMES ACT 1900 (NSW)
This Bill removes the entire Division 12 of Part 3 of the Crimes Act 1900 (NSW) to ensure that abortion is no longer a crime. This is also a necessary step towards addressing the myths and stigma associated with abortion and improving access and availability. Related amendments were also made to the Criminal Procedure Act 1986 (NSW). B SCHEDULE 1.3: AMENDMENT TO HEALTH PRACTITIONER REGULATION (ADOPTION OF NATIONAL LAW) ACT 2009 (NSW)
Abortion is undoubtedly a reproductive health and rights issue belonging not in the courts but in the medical arena. This amendment acknowledged and attempted to balance the right of a registered health practitioner to hold a conscientious objection to abortion and the right and expectation of the patient to be provided with full information about all options available to them. It clarifies that a registered health practitioner with a conscientious objection to abortion is required to advise the patient that they have such an objection and refer them to another doctor who does not have such an objection, or to a Women’s Health NSW Centre. C SCHEDULE 2: AMENDMENT OF SUMMARY OFFENCES ACT 1988 (NSW) TO ENACT SAFE ACCESS ZONES
The primary purpose of creating safe access zones – which are 150 metres in radius – outside places where abortions are provided is to protect the health, safety, dignity, well-being and medical privacy of those accessing these services. Similar to the safe access zone legislation in other states,17 such as Victoria, Tasmania and the ACT, this section creates an offence to harass, intimidate, obstruct or threaten people within the buffer zone. The Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 (NSW) was a product of intense consultation and engagement with a broad range of stakeholders including experts in obstetrics and gynaecology, and health and criminal law. It had been reviewed and endorsed by many key organisations such as the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), the NSW Council for Civil Liberties, the NSW Nurses and Midwives Association, the Public Health Association, Community Legal Centres NSW, Australian Lawyers for Human Rights, the National Tertiary Education Union, Family Planning NSW and Marie Stopes.18 Importantly, all three main provisions of the Bill also had the support of the vast majority of the NSW public, across Liberal-National, Labor and Greens voters. Polling conducted on behalf of the Greens NSW in 2015 revealed that a majority of people (73 per cent) support abortion decriminalisation, 81 per cent support the enactment of exclusion zones and 78 per cent agree that medical practitioners should be required to provide unbiased and independent information on options for unplanned pregnancies, whatever their personal views on the question of abortion.19 51
IV THE END12 CAMPAIGN
Repealing Division 12 of the Crimes Act 1900 (NSW) has been the goal of many feminist activists for some considerable time. The recent End 12 campaign20 was a response to the passing of the Crimes Amendment (Zoe’s Law) Bill 2013 (No 2) (NSW) in the NSW Legislative Assembly in 2014. This Bill sought to create a new offence for harm done to a foetus in utero, a move which many people argued created Foetal Personhood and was unnecessary and dangerous. The concept of Foetal Personhood would inevitably have impacted women, as well as legal and health professionals. It would have dire consequences for late term abortions and could have led to other changes to criminal law that would have impacted further upon the already tenuous legality of abortion.21 Together, a broad coalition of women’s rights advocates, medical and legal experts, professional organisations and the community built a strong campaign to convince enough Members of Parliament (‘MPs’) in the NSW Upper House to vote against the Bill. With its further passage doomed, it was never brought to the Legislative Council for debate and the Bill lapsed.22 The realisation of how close we had come to winding back what little gains had been made on reproductive rights ensured that a core group of activists and medical and legal professionals moved forward with a mission to decriminalise abortion and provide safe access. Along with work on the Abortion Law Reform Bill, rallies, community actions and public forums were held across NSW at locations including Albury, Newcastle, Gosford, Bega, Wagga Wagga, Byron and Sydney. Doctors, lawyers, students, interest groups and individuals joined in. The campaign garnered significant support from across the community, many of whom were shocked and outraged to learn that abortion remained a criminal offence. Thousands of people signed petitions and postcards to their MPs demanding they vote for the Abortion Law Reform Bill. Hundreds of doctors,23 and law and criminology academics24 signed opened letters to NSW MPs urging them to support the Bill. As the momentum built, social movements and activist organisations like the Women’s March and GetUp25 joined the ever-increasing calls to decriminalise abortion, while media attention on the issue intensified. I believe that attempts by other political parties to stop the Bill even being introduced in June 2016 were thwarted only because of the community campaign to push for change. This Bill would not have been debated inside Parliament without the grassroots activism outside of it.
20 #END12, #END12 Decriminalise
Abortion. Safe Access <http://www. end12.org.au/#intro>.
21 Mehreen Faruqi, ‘Comment:
Legislating Foetal Personhood is Misguided Public Policy’ SBS News (online), 27 September 2013 <http://www.sbs.com.au/ news/article/2013/09/27/commentlegislating-foetal-personhoodmisguided-public-policy>.
22 James Robertson, ‘“Zoe’s Law”
Bill Lapses, Closing Controversial Chapter’ The Sydney Morning Herald (online), 20 November 2014 <http://www.smh.com.au/ nsw/zoes-law-bill-lapses-closingcontroversial-chapter-2014112011qhq5.html>.
23 Doctors for Decriminalisation, Open
Letter to Members of the NSW Parliament from Doctors in Support of Decriminalising Abortion <https:// doctorsfordecrim.squarespace. com/>.
24 UNSW Law, Law Academics Urge
NSW Government to Take Abortion Off Criminal Code (11 August 2016) <http://www.law.unsw.edu.au/ news/2016/08/law-academics-urgensw-government-take-abortioncriminal-code>.
25 GetUp!, Abortion is Illegal in NSW,
That Could Change <https://www. getup.org.au/campaigns/rapidresponse--2/nsw-legalise-abortion/ abortion-is-illegal-in-nsw-thatcould-change>.
26 Ben Winsor, ‘“Completely Out Of
Step”: Abortion to Remain a Crime in NSW After Reform Bill Fails’ SBS News (online), 11 May 2017 <http://www.sbs.com.au/news/ article/2017/05/11/completely-outstep-abortion-remain-crime-nswafter-reform-bill-fails>.
27 Ibid. 28 Catherine Sheehan, ‘Thousands of
Catholics Rally behind Petition to Defeat Radical Abortion Bill in NSW’ The Catholic Weekly (online), 4 May 2017 <https://www.catholicweekly. com.au/thousands-of-catholicsrally-behind-petition-to-defeatradical-abortion-bills-in-nsw/>.
29 David Ould, NSW Abortion Bill (2
May 2017) The Gospel Coalition Australia <https://australia. thegospelcoalition.org/article/nswabortion-2017>.
30 Caroline de Costa and Heather
Douglas, ‘Bills Will Bring Australia’s Abortion Laws Out of the 19th Century’, Crikey (online), 11 May 2016 <https://www.crikey.com. au/2016/05/11/qld-abortion-lawreform/>.
31 Victorian Law Reform Commission,
Law of Abortion: Final Report, Report No 15 (2008) [3.36].
32 Heather Douglas and Caroline de
Costa, ‘Time to Repeal Outdated Abortion Laws in New South Wales and Queensland’ (2016) 205 The Medical Journal of Australia 353.
reforming an antiquated law out of step with community views and current medical practice.27 It is impossible not to recognise the influence of the antichoice Catholic Church and the Australian Christian Lobby in keeping abortion a crime in NSW.28 Their scare campaign was based on mistruths and misinformation, notably around the sensitive matter of late-term pregnancy terminations. The notion that if abortion was decriminalised, women would start having abortions right before birth29 is offensive, deeply misogynistic, and bears no resemblance to reality. The reality is that a vast majority of abortions (94 per cent) take place in the first 14 weeks of pregnancy, while only 5 per cent take place between 14 and 20 weeks30 and only 0.7 per cent of all abortions take place after 20 weeks of gestation.31 These are performed for severe foetal abnormalities or serious danger to the pregnant woman’s health, sexual assault or other exacerbating circumstances.32 Sadly, these facts were cast aside as inconvenient truths by those who voted against the Bill. VI ROOM FOR OPTIMISM
While the first-ever attempt to decriminalise abortion in the NSW Parliament was not successful, abortion rights and reproductive health have now been firmly placed on the political and public agenda. By supporters not remaining silent and bringing the issue to the forefront, the taboo of discussing abortion decriminalisation in a Parliament that has refused to consider it for well over one hundred years has been broken. By proving the critics wrong, we made it the right time to fight for women’s rights. In making a decision to vote ‘for’ or ‘against’ the Bill, every single MP and party room was forced to confront and consider reproductive rights. I know that there are supporters of this reform in each of the major parties which paves the way for ongoing conversations. While I cannot be sure exactly when the people of NSW will get the same reproductive health rights that residents of many other Australian states enjoy, I am confident we are well on the way to achieving this much-needed and longawaited change. The Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016 (NSW) and the End12 campaign mark the beginning, not the end, of the renewed push for decriminalising abortion in NSW.
V THE VOTE
In May 2017, the NSW Legislative Council failed to pass the Bill that would have removed abortion from the Crimes Act 1900 (NSW), where it has sat for well over one hundred years.26 Disappointingly, it was voted down 14:25, with every single member of the Liberal and National parties voting against it in what was meant to be a conscience vote. They were joined by three Labor members, the Shooters, Fishers and Farmers Party and the Christian Democratic Party. In doing so, 25 members of the NSW Upper House chose to ignore the evidence for change and the view of an overwhelming number of their constituents. In contrast, five Greens MPs, eight Labor MPs and one Animal Justice Party MP considered the Bill for what it was: a real opportunity to end the uncertainty around abortion law by 53
The Hon Michael Kirby
HUMAN RIGHTS, PEACE AND NORTH KOREA
The Hon Michael Kirby was Chair of the Human Rights Council’s Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (‘DPRK’) (‘North Korea’) (2013–14). Former Justice of the High Court of Australia (1996–2009).
This article is the amended and updated transcript of a speech delivered at the Jeju Forum, Jeju, Republic of Korea, 1 June 2017.
N.B. All footnotes hereafter have been inserted by the Court of Conscience Editorial Team as suggestions for further research.
1 Crimes against humanity include
murder, enslavement, torture and ‘other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’ ‘when committed as part of a widespread or systemic attack directed against any civilian population, with knowledge of the attack.’: Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 7(1). 2 Human Rights Council, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, UN Doc A/ HRC/25/CRP.1 (7 February 2014) <https://documents-ddsny.un.org/doc/UNDOC/GEN/ G14/108/71/PDF/G1410871. pdf?OpenElement>; See generally, Michael Kirby, ‘UN Commission of Inquiry on Human Rights Violations in the Democratic People’s Republic of Korea: Ten Lessons’ (2014) 15(2) Melbourne Journal of International Law 290.
The Democratic People’s Republic of Korea (‘DPRK’ or ‘North Korea’) is worthy of the attention of all of us because it is a country that has undoubtedly reached a very dangerous moment in its short and violent history. From the point of view of the future of humanity and of its own people, it is therefore appropriate that the international community should examine the preconditions for international peace and security. These include the observance of universal human rights and accountability for crimes against humanity.1 I am not, and never have been, an expert in military matters or geopolitical analysis. My expertise, relevant to North Korea, is the expertise that led to my appointment by the President of the United Nations Human Rights Council (‘UNHRC’) to be the Chair of the Commission of Inquiry (‘COI’) on Human Rights in the DPRK. It is an expertise in international human rights law and an experience in United Nations human rights activities and policy. The COI was given the task to report on a mandate that had nine headings relating to particular issues which were thought to require examination from a human rights point of view. We were not at large. We were not authorised to examine the geopolitical or security concerns of North Korea for the world. Our focus was narrow and particular. It was a human rights focus. We met as a COI for the first time in July 2013. Effectively, we had to deliver our report by January 2014. The report was completed in just over six months. It was delivered within budget and on time. It was unanimous. It was also readable and that was its strength. It recounted the COI’s findings on the human rights situation in the DPRK.2 It identified human rights violations that amounted to crimes against humanity. These included: violations of freedom of thought, opinion and religion; the violation of the right to food and widespread starvation whilst developing new dangerous and sophisticated weapons; the imposition of a classification of social classes that impedes and restricts human equality; 55
restrictions on freedom of movement; the arbitrary detention, torture and executions of alleged enemies of the people and their families; and the enforced disappearance and abduction of Koreans and foreign nationals – including many Japanese nationals – a piratical wrong that was actually admitted by the DPRK in 2002. The report created something of a sensation in the UNHRC. It then attracted very strong supportive votes in the UN institutions. The Human Rights Council is often deeply divided about human rights issues and there are frequent geopolitical alignments of countries concerning how they should respond. But the votes on the report of the COI on the DPRK were extremely strong and consensual. They supported the report. They sent it off to the General Assembly (‘GA’) with a proposal that the GA should pick up the COI’s suggestion and send the matter to the Security Council. This is a very rare thing to do in the case of human rights concerns because they are inevitably political and divisive. However, the GA voted very strongly to support the recommendations of the COI. There were relatively few (20) negative votes when it came to the proposal for follow up action on the report. It was at that stage that the DPRK at last began to be extremely concerned about the report. We had recommended, in the report, that the case of North Korea should be referred to a prosecutor at the International Criminal Court (‘ICC’). So far, there has been no resolution placed before the Security Council to achieve that end. Inferentially that is because China, and possibly the Russian Federation, have suggested that they would not agree. Therefore, that form of accountability has been effectively vetoed, at least until now. The failure to secure accountability in this way led to a new recommendation of the OHCHR to the UNHRC for a new committee of experts to look again at how this could be done. This was agreed. The report by a new committee of experts was delivered to the UNHRC in February 2017.3 The new committee recommended that there should be further exploration of the possibility of a special tribunal and of educative means, including amongst the North Korean community in South Korea, to review and report what has been happening in the DPRK. This was accepted by the UNHRC which had also earlier agreed that a UNHRC field office in South Korea should continue the collection of testimony from people who have suffered in North Korea and should do so in a form that could ultimately become the basis of a brief for a prosecutor, in whatever court or tribunal the matter may ultimately end up, whether the ICC or some different body. On the presentation the report of the COI to the UNHRC in March 2014, the COI’s mandate formally finished. However, many occasions have arisen for me to continue my involvement. The DPRK is a great puzzle that is of deep concern to people in many countries of the world. A puzzle of what can be done in the face of such intransigence on the part of the country concerned. And what can be done that will not give rise to the risks of even greater security dangers and the possible use of weapons that would be extremely dangerous for the DPRK itself, and for the Republic of Korea (‘ROK’), China, Japan and nearby countries as well as the global environment. In March 2017, I was invited to attend a meeting at the National Assembly of the Republic of Korea in Seoul. What was especially interesting at the session at the National Assembly was the response of those participants who had links with then Opposition parties in ROK, concerning the question of what should now be done. This was very important because,
3 Sonja Biserko and Sara Hossain,
Report of the Group of Independent Experts on Accountability, 34th sess, Agenda Item 4, UN Doc A/ HRC/34/66/Add.1 (24 February 2017).
57
as expected, the Opposition parties went on to win the ROK presidential election on 9 May 2017. Those elections replaced former President Park Geun-hye. She had been removed from office following a process of constitutional impeachment. President Moon Jae-in has now assumed office. He has promised a fresh and different approach, including an attempt to secure greater engagement with the DPRK.4 A view expressed in March 2017, by one of the Opposition supporters at the National Assembly meeting, was that the role of South Korea was not to harass North Korea over its human rights record. It was to improve the outlook of human rights in North Korea and to assist North Korea to come to a realisation about improved human rights for itself. It was suggested that it would be quite wrong for South Korea to do more than that. The problem, as it seemed to me (and I expressed it at the time), is that North Korea is a country that denies access by its nationals to international media or the internet.5 There is also a lack of access to civil society organisations that are not controlled by the government.6 It is therefore very difficult to imagine how the people of the DPRK could reach their own views different from the views that are presented to them by the authorities in power. Other views were expressed at the National Assembly about how the Opposition might approach the issue if elected to government. Still, it is a familiar phenomenon, which we have seen in our own countries, that once political leaders are elected to government they have the responsibilities of government. The leaders and people of ROK can be expected to react accordingly. One hopes that the new officials will trouble to read the report of the UN COI and find out what has happened in North Korea, according to that painstaking and careful report. If they do that, they will come to the conclusion that leaving the dire human rights situation in DPRK to correct itself is not really an available policy. Even from the point of view of peace and security, it is potentially a dangerous policy. Something has to be done to respond to the serious human rights situation in North Korea. The rebuffs by DPRK to the attempts at engagement offered by President Moon Jae-in have been discouraging. Even more worrying has been the actions of DPRK to engage in its sixth nuclear weapons test in September 2017 and to test launch international and other ballistic missiles of great potential danger to the region and beyond. A difficulty which the COI experienced in achieving dialogue within South Korea, was the apparent mistrust between the Government and the Opposition. This made it difficult, in the past, to persuade members of the Opposition to attend COI events and to engage on human rights issues. However, the COI report collects a mass of detailed material. It respects the people who have suffered. It brings their words, recounting their sufferings, to the attention of their own government and to the attention of the international community. How we respond to those concerns will be a test for international fidelity to the immediate post World War II decision that crimes against humanity, at least, should always be responded to. Where crimes against humanity are established or appear likely, the United Nations should not turn away. It is the obligation of the United Nations to ensure accountability and redress where the country concerned refuses, or fails, to do so. At this stage, that is the case with the DPRK. It rejects and dismisses the report of the COI. And its allies effectively prevent referral of the matter to a prosecutor of the ICC so that proceedings might be considered and brought so as to establish where truth lies authoritatively and conclusively.
4 See, eg, Choe Sang-Hun, ‘South
Korea’s New President, Moon Jae-in, Promises New Approach to North’, The New York Times (online), 10 May 2017 <https:// www.nytimes.com/2017/05/10/ world/asia/moon-jae-in-presidentsouth-korea.html?mcubz=0>; Matt Stiles, ‘On 100th Day in Office, South Korean President Tries to Ease Nation’s War Tensions’, Los Angeles Times (online), 17 August 2017 <http://www.latimes.com/ world/asia/la-fg-south-korea-moonspeech-20170817-story.html>.
5 See, eg, Amnesty International,
‘Connection Denied: Restrictions on Mobile Phones and Outside Information in North Korea’ (Research Report No ASA 24/3373/2016, 9 March 2016) <file:///C:/Users/ellen/Downloads/ ASA2433732016ENGLISH.PDF>.
6 Human Rights Watch, World Report
2017: North Korea – Country Summary (January 2017) <https:// www.hrw.org/sites/default/files/ northkorea_2.pdf>.
7 Zeid Ra’ad Al Hussein, ‘Statement
by UN High Commissioner for Human Rights’ (Speech delivered at the Opening Ceremony of the 34th Session of the Human Rights Council, Geneva, 27 February 2017) <http://www.ohchr.org/EN/ NewsEvents/Pages/ DisplayNews. aspx? NewsID=21229&LangID=E>.
8 Universal Declaration of Human
Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
9 See also, Special Rapporteur on
the Situation on Human Rights in the Democratic People’s Republic of Korea, Situation of Human Rights in the Democratic People’s Republic of Korea, 71st sess, Agenda Item 68(c), UN Doc A/71/402 (26 September 2016).
The UN High Commissioner for Human Rights, Prince Zeid Ra’ad Al Hussein, in his address at the opening of the session of the UNHRC in February 2017, pointed out that the Preamble to the Charter of the UN contains the three great principles for the work and mission of the United Nations.7 The first of these is observance of universal human rights. He pointed out that respect for universal human rights is intimately interconnected with the achievement of peace and security, the second great principle. That is undoubtedly so. Without protection and accountability for human rights, the dream of peace and security and economic equity and justice (the third principle) for the Korean Peninsula will remain an unachievable illusion. The present situation in North Korea is extremely dangerous to the human rights of the people of that country. But it is also dangerous for peace and security. And because of the intrusion of nuclear weapons, missiles and the enormous army facilities that the DPRK can now deploy, the dangers extend beyond the Korean Peninsula to the region and to the planet. This is why the world, in its understandable desire to achieve a peaceful resolution of the huge dangers of North Korea, must not forget the report of the UN inquiry into human rights in that country. Without human rights accountability, there will be no peace. There will be no stability, except on a basis of fear and terror. The dangers of conflict will not recede. To the dangers of deliberate warlike actions of great peril will be added the dangers of accidents, mistakes and miscalculations. A new approach, as proposed by the new Administration in ROK, may bring new ideas. However, the new ideas must be faithful to the principles stated in the Charter of the United Nations, the principles expressed in the Universal Declaration of Human Rights8 and UN treaty law. This is the central puzzle and dilemma that the international community faces at this time in dealing with the challenges presented to it by the DPRK.9 The security concerns are great indeed. But they cannot be divorced from the dangers, internal and external, caused by the violation of human rights committed by the DPRK. Especially the crimes against humanity found by the COI which calls out for redress and accountability.
59
Jeswynn Y�garatnam
A PEOPLE-CENTRED REFUGEE RESPONSE: PARALLELS TO THE HUMAN SECURITY APPROACH
Jeswynn Yogaratnam [LLB (Hons) (UoL); LLM (Tax) (UQ)] is a PhD candidate at the Australian National University College of Law and a law lecturer at Charles Darwin University. His research evaluates the human security approach by the United Nations Development Programme as a way forward when dealing with refugees and asylum seekers. He attempts to apply responsive regulation theory to develop a contemporary human security framework when policymaking in particular aspects of forced migration. Jeswynn acknowledges Melbourne Law School in his capacity as a visiting scholar for access to research resources and institutional support in writing this article.
1 GA Res 71/1, UN GAOR, 71st sess,
Agenda Item 13 and 117, Supp No 49, UN Doc A/Res/71/1 (3 October 2016, adopted 19 September 2016).
2 Volker Türk, ‘Prospects for
Responsibility Sharing in the Refugee Context’ (2016) 4 Journal on Migration and Human Security 45, 45.
3 Ibid. 4 The CRRF is a document annexed
to the NYD which sets out the NYD’s vision for a more predictable and more comprehensive response to the refugee crises. See UNHCR, Comprehensive Refugee Response Framework (September 2016) <http://www.unhcr.org/en-au/ comprehensive-refugee-responseframework-crrf.html>.
5 NYD, UN Doc A/RES/71/1 (3
October 2016, adopted 19 September 2016) annex I para 3; see also paras 11, 22.
I INTRODUCTION
On 19 September 2016, the United Nations General Assembly Summit for Refugees and Migrants adopted key commitments to enhance protection for millions of people who had been forcibly displaced. This was expressed through the United Nations Summit, In Safety and Dignity: Addressing Large Movement of Refugees and Migrants, which became known as the New York Declaration for Refugees and Migrants (‘NYD’).1 The United Nations High Commissioner for Refugees (‘UNHCR’) called the NYD an innovative direction ‘in protection, assistance and solutions for refugees’.2 It was said that the NYD would help ‘to operationalize long-standing principles of protection, transforming them into tangible results for refugees’.3 This article looks at the people-centred approach noted in the NYD through the Comprehensive Refugee Response Framework (‘CRRF’).4 In particular, Annex 1, paragraph 3 of the CRRF states that: While each large movement of refugees will differ in nature, the elements noted … provide a framework for a comprehensive and people-centred refugee response, which is in accordance with international law and best international practice …5
6 See United Nations (‘UN’),
Global Compact on Refugees, (2017) Refugees and Migrants <http://refugeesmigrants.un. org/ refugees-compact>: UNHCR envisages that the Global Compact on Refugees will comprise two complementary parts: 1. The Comprehensive Refugee Response Framework, as agreed by Member States in Annex I to the New York Declaration …; 2. A Programme of Action underpinning the Framework that sets out actions that can be taken–both by Member States and by other relevant stakeholders–to ensure its full implementation.
The purpose of this article is to first, outline the people-centred approach promoted by the United Nations Development Programme (‘UNDP’) in 1994 through the human security prism. It is suggested that the people-centred approach within the CRRF is similar to the approach utilised by the UNDP’s human security concept. This article provides a description of the UNDP’s human security concept to encourage and generate ideas on revisiting the concept as part of the CRRF’s prospective refugee response for the Global Compact on Refugees in 2018.6 Second, the article highlights the conceptual commonalities 61
between the UNDP’s human security approach and the CRRF’s refugee response. II UNDP’S PEOPLE-CENTRED HUMAN SECURITY APPROACH
The UNDP’s concept of human security is based on the Preamble to the 1945 United Nations Charter, which seeks ‘to promote social progress and better standards of life in larger freedom’.7 This includes the larger freedoms propounded by President Franklin D Roosevelt in his 1941 Four Freedoms Speech which are: ‘freedom from fear’ and ‘freedom from want’.8 These two larger freedoms became the corner stone to the UNDP’s human security concept.9 They encapsulate safety from chronic threats such as hunger, disease and expression; and protection from sudden and hurtful disruptions in the patterns of daily life.10 Subsequently, a third freedom – ‘freedom to live in dignity’ was associated with the concept.11 The notion of human security as freedom from want has been promoted by Japan,12 whereas Canada and Norway promoted human security in the context of freedom from fear during periods of particular governments.13 Following the 1994 UNDP Human Development Report,14 Henk summarised the seven constituent parts of the human security concept as follows: 15 • Economic security, assuring every individual a minimum requisite income. • Food security, guaranteeing “physical and economic access to basic food.” • Health security, guaranteeing minimum protection from disease and unhealthy lifestyles. • Environmental security, protecting people from the short and long-term ravages of nature, man-made threats in nature, and deterioration of the natural environment. • Personal security, protecting people from physical violence, whether from the state, from external states, from violent individuals and sub-state actors, from domestic abuse, from predatory adults, or even from the individual him[/her]self (as in protection from suicide). • Community security, protecting people from loss of traditional relationships and values and from sectarian and ethnic violence. • Political security, assuring that people “live in a society that honours their basic human rights.” 16 Henk noted that UN endorsement was a powerful incentive to policymakers that would eventually lead to a group of countries, along with scholars, participating in the genesis of human security at ministerial levels.17 The operationalisation of this people-centred approach called for a coordinated response and at a minimum required effective efforts to develop public sector redistributive capacity, private sector employment opportunity, and the civil society safety-net infrastructure.18 This is to be achieved together with the complementary development of justice protocols, with some provision of law enforcement, administration of justice and protection of basic human rights.19 It is said that the development of human security offered a useful guide to assist foreign policies and international development as well as a policy tool for programming in the fields of security, development and humanitarian work.20 The added value has been identified as its capacity for empowerment and prevention, which can be contextualised and administered through partnerships and collaborations. Importantly, human
7 Charter of the United Nations
Preamble para 1 (emphasis added).
8 It has been noted that the original
UN objectives were formulated on the basis of the US President Franklin Roosevelt’s position on ‘the four fundamental freedoms’: Wolfgang Benedek, ‘Human Security and Human Rights Interaction’ (2008) 59 International Social Science Journal 7, 7 (emphasis added).
9 UNDP, ‘Human Development
Report 1994: New Dimensions of Human Security’ (Human Development Report, United Nations Development Programme, 1994) 24 <http://hdr.undp.org/sites/ default/files/reports/255/hdr_1994_ en_complete_nostats.pdf>.
10 Ibid 23. 11 Human Security Unit, ‘Human
Security Unit Strategic Plan 2014–2017’ (Strategic Plan, United Nations, 2014) 5–8 <https://docs. unocha.org/sites/dms/hsu/hsu%20 Strategic%20Plan%2020142017%20web%20version.pdf>.
12 Hideaki Shinoda, ‘Human Security
Initiatives of Japan’ in Hans Günter Brauch et al (eds), Facing Global Environmental Change: Environmental, Human, Energy, Food, Health and Water Security Concepts (Springer-Verlag, 2009) 1097, 1100.
13 Yu-tai Tsai ‘The Emergence of
Human Security: A Constructivist View’ (2009) 14(2) International Journal of Peace Studies 19, 21.
14 UNDP, above n 9. 15 Dan Henk, ‘Human Security:
Relevance and Implications’ (2005) 35(2) Parameters 91, 93.
16 Ibid citing Human Development
Report 1994, above n 9, 25–33.
17 Ibid 94. 18 Ibid 98. 19 Ibid. 20 Human Security Unit, above
n 11, 5, 14.
21 Helen Clark and Filippo Grandi,
‘3RP: Regional Refugee and Resilience Plan 2017–2018 in Response to the Syria Crisis: Regional Strategic Overview’ (Strategic Plan, UNDP, 24 January 2017) 3 <http://www.3rpsyriacrisis.org/ wp-content/uploads/2017/02/3RPRegional-Strategic-Overview -20172018.pdf>.
22 Frances Voon, ‘Minding the
Humanitarian-Development Gap: Where Do We Stand?’ (Paper presented at the Andrew & Renata Kaldor Centre for International Refugee Law Annual Conference 2016, Sydney, 18 November 2016) 5 (emphasis in original).
23 UNHCR, UN Summit Commits to
Protect Refugee, Migrant Rights: UN General Assembly Summit for Refugees and Migrants Adopts Key Commitments to Safeguard Those on the Move (19 September 2016) <http://www.unhcr.org/ news/latest/2016/9/57dfa1734/unsummit-commits-protect-refugeemigrant-rights.html>.
24 Ibid. 25 Ibid. 26 Sadako Ogata was the UNHCR
High Commissioner (1991–2000) who advocated for the human security approach to be applied in the refugee context.
27 Sadako Ogata, ‘Foreword’ in
Edward Newman and Joanne van Selm (eds), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (United Nations University Press, 2002) x.
28 Ibid. 29 Ibid. 30 Volker Türk, The New York
Declaration: Once in a Lifetime Opportunity to Enhance Refugee Protection (11 October 2016) Andrew & Renata Kaldor Centre for International Refugee Law <http:// www.kaldorcentr e.unsw.edu.au/ news/new-york-declaration-oncelifetime-opportunity-enhancerefugee-protection>.
31 Ibid.
security is seen as an operational tool for comprehensive multisectoral collaboration in protection responses. While the purpose of this section is to highlight salient aspects of the human security concept, it is suggested that a deeper examination of the human security approach will draw parallels with current refugee initiatives. An example is the Syria Regional Refugee & Resilience Plan (or ‘3RP’). The 3RP is a response to the Syrian crisis ‘with longer term interventions bolstering the resilience of refugee and host communities, while also capacitating national systems’.21 Voon noted that the 3RP ‘incorporates both refugee and host country needs for immediate support and longer-term resilience, and has been formulated through partnerships between host governments, the UNHCR and the UNDP’.22 It is suggested that this is similar to the way in which the human security approach is operationalised. III
THE HUMAN SECURITY – CRRF NEXUS
The nexus between human security and the CRRF stems from the common goal of addressing freedom from fear and freedom to live with dignity through a people-centred approach applying non-discriminatory and holistic methods. Both see the value of multi-stakeholder and multi-sectoral engagement in dealing with vulnerabilities of people seeking protection. In addition, both also place importance on the involvement of non-state actors such as international funding bodies (eg, the World Bank), UN and non-UN agencies (eg, UNHCR and the International Organization for Migration), local private sector engagement, local civil society participation and the involvement of faith-based and academic institutions. Importantly, both promote an integrative approach of law (international human rights law, international humanitarian law, international refugee law, etc.) to deal with common pathologies of forced migration not just in relation to the individuals seeking protection but also to the countries of origin and various transit and host countries involved. Implicit in this nexus evaluation is that both operate with the notion that refugees and migrants are not to be seen as a burden because they offer great potential. The challenge lies in unlocking that potential.23 What is needed to unlock the potential is to ‘change gear’24 in the sharing of responsibility for refugees.25 It is suggested that this change of gear especially through the CRRF can be achieved, for example, through an appraisal of successful UNDP human security initiatives. Such an approach resonates with Ogata’s26 observation that a ‘reappraisal of the current refugee regime is needed in order to deal effectively with the nexus between displacement and security and between displacement and development, and with external and internal movements of people’.27 Ogata makes the comment that ‘[f]or too long the study of refugee issues has been seen as an isolated and often secondary challenge’.28 Importantly, Ogata acknowledges that refugee issues must be ‘analysed within a much broader context …’29 Here is where the UNDP’s human security can add to this broader context by exploring responsibility sharing with the refugee related multi-sectoral entities. Interestingly, the people-centred and broader context thinking has resurfaced recently in Türk’s call for a whole society approach.30 Similar to the peoplecentred methodology, Türk’s suggestion is aimed at host countries ‘where not only the national governments but also local authorities, civil society groups, faith communities and the private sector pool their forces to respond to refugees’.31 To this end, it may be useful to carry out a mapping exercise 63
on past human security operational frameworks. Such an exercise may expose the fact that we are revisiting parallels to an operational approach which may be reconstituted as the CRRF’s people-centred refugee response. Inviting the UNDP human security stakeholders, past and present, to the UNHCR’s design and implementation meetings for future refugee response strategies may help shape the UNHCR’s future refugee response operational framework. IV
CONCLUSION
By adopting the NYD, the UN Members States have indicated commitments which include developing guidelines on, inter alia, refugees seeking protection.32 The High Commissioner for Refugees has a mammoth task ahead in preparing the final proposal for the Global Compact on Refugees in his 2018 report to the UN General Assembly. As the consultative process towards the Global Compact is ongoing, it is timely that we examine ways in which a framework can be developed to include the UNDP human security approach or a hybrid of the concept. This is important because as Newman reminds us ‘[a]n overarching objective is to [develop] strategies through which legal, political/ normative, and institutional frameworks can genuinely confront these challenges…’33 Furthermore, as Voon noted, ‘support for joined up humanitarian and development assistance must form part of fundamental norms of refugee protection’.34 This is central to the UNDP’s human security concept. Policymakers need to be mindful that in developing new strategies we need to avoid new labels. Instead, it is necessary to examine previous modalities and build on the strengths of these approaches. Ultimately, we need the lessons from the past to effectively contribute to the future blueprint. Revisiting the UNDP’s human security people-centred approach should be part of the UNHCR’s Global Compact planning methodology. Sadako Ogata spent a decade as the United Nations High Commissioner for Refugees socialising the human security approach. It may be worthwhile for the current High Commissioner, Filippo Grandi, as part of the consultative process, to revisit his predecessor’s contribution to UNHCR from the UNDP-human security-refugee perspective. This may add value to the UNHCR’s annual report to the United Nations General Assembly in 2018 when the Global Compact on Refugees is unpacked.
32 Daniel Thomas, ‘New York
Declaration for Refugees and Migrants Adopted by All Member States at the Historic UN Summit’ (Press Release, 19 September 2016) 1 <https://refugeesmigrants. un.org/sites/ default/files/ un_press_release_-_new_york_ declaration_-_19_september_ 2016.pdf>.
33 Edward Newman, ‘Refugees,
International Security, and Human Vulnerability: Introduction and Survey’ in Edward Newman and Joanne van Selm (eds), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (United Nations University Press, 2002) 3, 16.
34 Voon, above n 22, 9.
65
IT’S NEVER ENOUGH SAID: THE RELATIONSHIP BETWEEN ACTION AND DISCOURSE AT THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA
Natasha Naidu is a fourth year Law/Arts student at the University of New South Wales and former intern at the Extraordinary Chambers in the Courts of Cambodia.
1 The term ‘internationalised tribunal’
is defined as a tribunal where both ‘the institutional apparatus and applicable law consist of a blend of the international and the domestic’: Laura A Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295, 295.
Nat�sha Naidu
2 ECCC, Introduction to the ECCC
<https://www.eccc.gov.kh/en/abouteccc/introduction>.
3 ECCC, Internal Rules (Rev. 9)
(adopted 16 January 2015) Preamble.
I INTRODUCTION
The theme of Court of Conscience’s 2017 Issue, ‘Enough Said’, poses a problematic framework for approaching social injustices. The theme proposes that criticism and analysis of social injustices is only useful to a certain extent, encouraging a turn away from words and towards actions. I agree that there is an essential need for effective action in addressing social injustices. However, there are two assumptions that ‘Enough Said’ implies, which I view as problematic: first, that action is more effective than discourse, and second, that those affected by injustices have been able to speak at all. Here, I define ‘discourse’ as words; synonymous with speaking, criticising and analysing. I define ‘action’ as doing, for example practical initiatives and activities which aim to remedy social injustices. Henceforth, I aim to unpack these assumptions through a study of the relationship between action and discourse in investigating crimes of sexual and gender-based violence (‘SGBV’) at the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’). In sum, I aim to illustrate how action and dialogue are equally important, interdependent and continually needed in investigating and prosecuting crimes of SGBV at the ECCC, in order to portray that when it comes to addressing social injustices, it’s never ‘enough said’. A THE EXTRAORDINARY CHAMBERS IN THE COURTS OF CAMBODIA
The ECCC, also known as the Khmer Rouge Tribunal, is an internationalised tribunal1 established by the Royal Government of Cambodia and supported by the United Nations.2 The ECCC’s mandate is to prosecute the senior leaders and those most responsible for the crimes committed during the period of Democratic Kampuchea (‘DK’) between 1975 and 1979.3 Aside from holding those most responsible accountable, the remit of the court includes rehabilitation for victims, 67
educating the public and strengthening the rule of law to contribute to the reconstruction of Cambodian society.4 B CRIMES OF SEXUAL AND GENDER-BASED VIOLENCE
Sexual crimes are commonly understood as physical or non-physical acts with a sexual element, for example rape or enforced prostitution.5 Gender-based crimes are acts committed against a person because of their sex or because of socially constructed gender roles.6 Forced marriage was a unique practice during the Khmer Rouge, where couples were arbitrarily married without choice or consent.7 Subsequently, married couples were pressured or coerced by Khmer Rouge cadre to consummate their marriage.8 Through examining the treatment of SGBV crimes both inside and outside of forced marriage at the ECCC, I will illustrate that action and dialogue are equally important, interdependent and continually needed in addressing SGBV crimes. II EQUALLY IMPORTANT
Crimes of sexual and gender-based violence were originally not prioritised during investigation at the ECCC, due to a popular assumption that there had been little to no SGBV perpetrated during the Khmer Rouge.9 This assumption was based on a culture of victim-blaming and on an official Khmer Rouge policy in which rape was a ‘immoral offense’ severely punished if perpetrated by Khmer Rouge cadre.10 Indeed, Judge Sylvia Cartwright of the ECCC’s Trial Chamber noted that ‘this particular conflict is unusual [in that] it does not contain allegations of widespread violence against women’.11 Palmer and Williams also attribute the all-male investigation team and lack of SGBV expertise at the Court to the failure to consider investigating such crimes.12 Here, it would have been problematic to conclude that it was ‘enough said’ in regards to crimes of SGBV during the Khmer Rouge. Instead, it is the dialogue that was facilitated by investigators in the course of their investigation that provided a platform for victims to speak about their experiences with SGBV during the DK era. Evidence that emerged in the course of conversation with witnesses included the victims of rape being punished13 and civilians being coerced into consummating their forced marriages by Khmer Rouge cadre.14 As a result of this dialogue, the Trial Chamber indicated that it would consider allegations of rape within forced marriage in Case 002/02.15 Rape within forced marriage was characterised as an ‘other inhumane act’ of crimes against humanity.16 Here, the equal importance of the action of investigation and the dialogue facilitated with witnesses and victims in bringing SGBV crimes within the ambit of the ECCC is illustrated. This is not to say that action and dialogue should be applied in equal measure, or that it is even possible to quantify such measures, but simply that both should be prioritised and present when addressing social injustices. Without the voices of those affected by SGBV crimes during the DK regime, the ECCC would not have been able to dispel the popular myth that sexual violence was not perpetrated during the DK era. In this sense, action and dialogue are of equal importance. III INTERDEPENDENT
The ECCC’s decision to include rape within the scope of Case 002/02 was simultaneously welcomed and criticised by academics and civil society actors.17 This is because the Trial
4 See ECCC, Why Are We Having
Trials Now? How Will the Khmer Rouge Trials Benefit the People of Cambodia? (2011) <https://www.eccc.gov.kh/en/faq/ why-are-we-having-trials-now-howwill-khmer-rouge-trials-benefitpeople-cambodia>.
5 The Office of the Prosecutor, ‘Policy
Paper on Sexual and Gender-Based Crimes’ (Policy Paper, International Criminal Court, June 2014) 3.
6 Ibid. 7 Transcultural Psychosocial
Organization Cambodia, ECCC and Cambodian Defenders Project, Forced Marriage, GBV under the Khmer Rouge Information Platform <http://gbvkr.org/genderbased-violence-under-khmer-rouge/ facts-and-figures/forced-marriage/>.
8 Theresa de Langis et al, ‘“Like
Ghost Changes Body”: A Study on the Impact of Forced Marriage under the Khmer Rouge Regime’ (Report, October 2014) 28.
9 Rachel Killean, ‘An Incomplete
Narrative: Prosecuting Sexual Violence Crimes at the Extraordinary Chambers in the Courts of Cambodia’ (2015) 13 Journal of International Criminal Justice 331, 334, 338–9.
10 Ibid 334–5. 11 Abby Seiff, ‘KR Regime an Anomaly
on Gender-Based Violence’ The Cambodia Daily (Phnom Penh) 17–18 September 2011, 11 < http:// www.civilparties.org/?p=1843>.
12 Emma Palmer and Sarah Williams,
‘A “Shift in Attitude”? Institutional Change and Sexual and GenderBased Crimes at the Extraordinary Chambers in the Courts of Cambodia’ (2017) 19 International Feminist Journal of Politics 22, 26–7.
13 Theresa de Langis and Silke
Studzinsky, ‘Briefing Paper on the ECCC, the Cambodian Women’s Hearings, and Steps for Addressing Sexual Violence under the Khmer Rouge Regime’ (Briefing Paper, May 2012) 5.
14 Killean, above n 9, 336. 15 Palmer and Williams, above n 12, 28. 16 ‘[T]he Trial Chamber confirmed
that Case 002/02 would consider charges of “other inhumane acts” of forced marriage and sexual violence within forced marriage’: Ibid. The decision to consider charges of rape as an ‘other inhumane act’ of crimes against humanity has been widely criticised because it was open to the Trial Chamber to consider rape as its own enumerated crime against humanity of rape: ECCC, Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (adopted 2 January 2001) art 5. For a discussion of the legal arguments and the gendered nature of this decision, see Sarah Deibler, ‘Rape by Any Other Name: Mapping the Feminist Legal Discourse Regarding Rape in Conflict onto Transitional Justice in Cambodia’ (2017) 32 American University International Law Review 501.
17 See, eg, Ibid. 18 Ibid 511–20. 19 ECCC, Press Release by
the Trial Chamber Regarding Sexual Violence Crimes (6 June 2012) <https://www.eccc.gov. kh/en/articles/press-releasetrial-chamber-regarding-sexualviolence-crimes>.
20 Ibid. 21 Beini Ye, ‘Transitional Justice
Through the Cambodian Women’s Hearings’ Cambodia Law and Policy Journal 23, 28.
22 See, eg, ECCC above n 19: ‘[I]
nternational crimes must be met by varied responses, and much of the benefit of the ECCC will be found not only in the verdicts issued, but also in the impetus they bring to other measures that serve to empower victims and alleviate their suffering’.
23 ‘In contrast [to the ECCC], the
Women’s Hearings captured individual narratives only from the perspective of victims without endevouring to present an objective version of past events’: Ye, above n 21, 28.
24 Cambodian Defender’s Project,
‘Report on the Proceedings of the 2011 Women’s Hearings on Sexual Violence under the Khmer Rouge Regime’ (May 2012) 2.
25 Ye, above n 21, 27. 26 Cambodian Defender’s Project,
above n 24, 16.
27 Nicholas Koumjian, International
Co-Prosecutor Requests Investigation of Alleged Sexual and Gender-Based Violence in Case 004 (24 April 2014), ECCC, <https://www.eccc.gov. kh/en/articles/international-coprosecutor-requests-investigationalleged-sexual-and-gender-basedviolence>.
Chamber was to only consider evidence of rape within forced marriages, as opposed to evidence of rape perpetrated by Khmer Rouge cadre in other situations.18 This isolated many victims whose testimony of SGBV perpetrated by Khmer Rouge cadre outside of forced marriage would not be heard in the Case 002/02 trial. Most notably, United Nations Special Representative to the Secretary-General on Sexual Violence in Conflict, Margot Wallström, criticised the legal characterisation of rape and called on the ECCC to use ‘the full benefit of the court’s resources and attention’ in regards to crimes of SGBV.19 An ECCC press release in response to Wallström’s statement acknowledged that the Court had already benefited from recommendations made by SGBV experts and welcomed constructive suggestions to assist with the prosecution strategy of crimes of SGBV.20 Here, the constant interaction between the action taken at the ECCC and resulting criticism and analysis reflects the interdependence of action and dialogue. In response to the failure of the ECCC to consider witness testimony about crimes of SGBV outside of forced marriage,21 and suggestions that civil society should act,22 the Cambodian Defender’s Project initiated a series of Women’s Hearings which ran annually from 2011 to 2013. The Women’s Hearings were designed as an alternative forum for women to voice their experiences of sexual violence perpetrated during the DK era free from the restrictions imposed at the ECCC.23 The aim of the hearings was to provide a truth-telling forum on sexual violence, ensure that sexual violence was included in the historical account of Khmer Rouge atrocities and publicly acknowledge the suffering of survivors.24 Following the hearings, all who testified reported feeling a sense of justice, relief and bonding with other survivors.25 An expert panel at the hearings produced a set of recommendations for the ECCC, calling on the Court to investigate the extent, circumstances and actors of sexual violence during the DK era in future cases.26 Indeed, rape as its own enumerated crime against humanity both inside and outside forced marriage has subsequently been alleged by the Co-Prosecutor in Case 004 currently under investigation at the ECCC.27 Interestingly, the Women’s Hearings took the form of both action and dialogue, in that the hearings aimed to actively remedy the deficiencies of the Court by facilitating victims of SGBV crimes to speak about their experiences. It will always be essential to ask who is speaking when it comes to facilitating dialogue. In the case of Cambodia, it is increasingly important that voice be given to the nascent legal profession and academia as opposed to international non-government organisations (‘NGOs’). Without criticism and analysis of the ECCC hearings, the Women’s Hearings would have never taken place. And without women speaking about their experiences at the Women’s Hearings, the ECCC would not have been prompted to investigate rape as an enumerated crime against humanity in Case 004. In this regard, action and dialogue are interdependent. IV
CONTINUALLY NEEDED
A SEXUAL AND GENDER-BASED VIOLENCE IN CONTEMPORARY CAMBODIAN SOCIETY
Unfortunately, the conversation facilitated about SGBV during the Khmer Rouge has not directly increased dialogue about crimes of SGBV committed in contemporary Cambodian society. While statistics on sexual violence in Cambodia are unreliable due to under-reporting and ineffective data collection, centrally placed sources such as the Ministry of Women’s 69
Affairs believe that incidences of rape are ‘increasing and that a growing number of victims are children’.28 The experience of being female in a patriarchal culture, a climate of impunity and widespread Government corruption prevent victims from being able to speak about their experiences, leaving the situation unaddressed.29 Further, the silence around experiences of sexual violence in Cambodia makes it difficult for NGOs and civil society actors to effectively levy criticism and call for action. It is not enough that victims of SGBV during the Khmer Rouge are given a platform to speak; evidently there is a continual need to facilitate dialogue around experiences of SGBV in contemporary Cambodian society. B FREEDOM TO SPEAK IN CAMBODIAN SOCIETY GENERALLY
The continual need for dialogue extends further to the ability to speak in Cambodian society about a variety of social justice issues. Here, the Western-centric assumption that those affected by social injustices have been allowed to speak in the first place must be dispelled. In Cambodia, ‘incitement’ is a crime frequently employed by the Government to threaten, imprison or reprimand those who speak against the leaders of the Government.30 Land-grabbing violations31 and widespread Government corruption32 are examples of social injustices which victims are often unable to speak out about without the threat of prosecution. July 2017 marked one year since popular political analyst Kem Lay was shot and killed at a Caltex petrol station just days after giving an interview with Voice of America Cambodia commenting on a new Global Witness report33 which detail the alleged business empire of Cambodia’s ruling family.34 Many Cambodians, including former leader of the opposition party Sam Rainsy, have since stated that this was a political assassination, and that leaders of the Cambodian Government are to blame.35 Rainsy has since been tried in absentia and sentenced to jail for these comments.36 Others who have made similar comments are either currently under investigation or in pre-trial detention.37 It is offensive to suggest that it is ever ‘enough said’ in Cambodia when many human rights defenders are currently imprisoned indefinitely due to their attempts to speak out about social injustices.38 The continual need for dialogue in Cambodian society is evident. C RECONCEPTUALISING DIALOGUE
In drawing out the lessons of the treatment of SGBV at the ECCC and applying them to wider issues of social injustice in contemporary Australian society, it is clear that dialogue plays a crucial role in providing victims a voice and allowing civil society to constructively criticise, analyse and improve action. In this sense, while effective action is crucial in addressing social injustices, dialogue is of equal importance. It is never ‘enough said’. It is essential to reconceptualise the role that dialogue plays in addressing social injustices. Speaking about and criticising social injustices should not play a merely preparatory role in action taken. Instead, a constant flow of dialogue must be encouraged around the injustice and the action. Dialogue is not merely a precursor to action; it is of equal importance, interdependence and continually needed. V CONCLUSION
28 Amnesty International, ‘Breaking
the Silence: Sexual Violence in Cambodia’ (Report, March 2010) 6.
29 Ibid 39–40. 30 For example, a woman in a
Facebook video pictured throwing her shoe at a sign featuring Prime Minister Hun Sen’s face was summonsed for questioning: Niem Chheng and Leonie Kijewski, ‘Woman Who Threw Shoe at CPP Sign in Video Sought’, The Phnom Penh Post (online), 10 April 2017 <http://www.phnompenhpost.com/ national/woman-who-threw-shoecpp-sign-video-sought>.
31 See Emma Burnett, ‘I Became
Victimised Because My Land was Grabbed, and Now I’ve Been Put in Prison’ on Global Witness (11 August 2017) < https://www. globalwitness.org/en/blog/ibecame-victimised-because-myland-was-grabbed-and-now-ivebeen-put-prison/>.
32 See Amnesty International, above n
28, 40–1.
33 See Global Witness, Hostile
Takeover: The Corporate Empire of Cambodia’s Ruling Elite (7 July 2016) <https://www.globalwitness. org/en/reports/hostile-takeover/>.
34 Sok Khemara, An Interview with the
Late Kem Ley (13 July 2016) VOA Khmer <https://www.voacambodia. com/a/an-interview-with-the-latekem-ley/3415391.html>.
35 Sek Odom and George Wright,
‘After Trial, Rainsy Accuses Government of Kem Ley Killing’, The Cambodian Daily (online), 17 March 2017 <https://www. cambodiadaily.com/news/trialrainsy-accuses-government-kemley-killing-126742/>.
36 Niem Chheng, ‘Rainsy Sentenced
Yet Again for Defamation’, The Phnom Penh Post (online), 31 March 2017 <http://www. phnompenhpost.com/national/ rainsy-sentenced-yet-againdefamation>.
37 See, eg, Kuch Naren and George
Wright, ‘Analyst Jailed over Kem Ley Comment after PM’s Threat’ The Cambodian Daily, 20 February 2017 <https://www.cambodiadaily. com/morenews/analyst-jailedover-kem-ley-comment-after-pmsthreat-125417/>; Meas Sokchea and Mech Dara, ‘Woman Arrested for Kem Ley Remarks’ The Phnom Penh Post (online), 13 July 2017 <http://www.phnompenhpost.com/ national/woman-arrested-kem-leyremarks>.
38 See Amnesty International,
‘Amnesty International Report 2016/17: The State of the World’s Human Rights’ (Annual Report, 2017) 104–5.
39 Nathan A Thompson, ‘Cambodia’s
Dream of Democracy is Dying’ CNN (online), 5 September 2017 <http://edition.cnn.com/2017/08/31/ opinions/cambodia-press-attackopinion-thompson/index.html>.
40 Ibid. 41 Post Staff, ‘Developing: CNRP
Leader Kem Sokha Arrested for “Treason”’ The Phnom Penh Post (online), 3 September 2017 <http://www.phnompenhpost.com/ national/developing-cnrp-leaderkem-sokha-arrested-treason?utm_ content=buffer35158&utm_ medium=social&utm_ source=facebook. com&utm_campaign=buffer>.
42 Ibid. 43 Julia Wallace, ‘Cambodia’s
Opposition Chief loses Immunity in Treason Case’ The New York Times (online), 11 September 2017 <https://www. nytimes.com/2017/09/11/world/ asia/cambodia-kem-sokha. html?mcubz=0>.
44 Deborah Krisher-Steele and
Jodie DeJonge, ‘The Cambodia Daily to Close After 24 Years’ The Cambodia Daily (online), 4 September 2017 <https://www. cambodiadaily.com/cambodia-dailyclose-24-years/>.
45 Euan Black, ‘Cambodia Daily
Publishers Banned from Leaving the Country’ Southeast Asia Globe (online), 4 September 2017 <http://sea-globe.com/cambodiadaily-publishers-banned-leavingcountry/>.
46 Thompson, above n 39. 47 Matthew Tostevin and Prak Chan
Thul, ‘Cambodian Paper Shuts with “Dictatorship” Parting Shot’ Thompson Reuters (online), 4 September 2017 <https://www. reuters.com/article/us-cambodiamedia/cambodian-paper-shutswith-dictatorship-parting-shotidUSKCN1BE11H>.
48 See, eg, Government
spokesperson Phay Siphan’s recent statement that ‘“[i]f Kem Sokha is involved with foreign agents, a foreign government, to topple the Cambodian government, that is treason,” he added. “During the 1960s they killed those people involved with the U.S., they shot them”’: Wallace, above n 43.
dialogue and that those affected by social injustices have been able to speak at all. The action of speaking to witnesses and victims affected by SGBV during the Khmer Rouge, and the dialogue facilitated during the course of these conversations, reflect that action and dialogue were of equal importance in bringing SGBV crimes within the ECCC’s ambit. The criticism and analysis of the court’s legal characterisation of rape by civil society, and the extra-judicial steps taken such as the Women’s Hearings, show that dialogue and action were interdependent in encouraging a more comprehensive legal characterisation of crimes of SGBV in later cases at the ECCC. Unfortunately, the dialogue facilitated around SGBV crimes during the DK era has done little to increase conversations about SGBV crimes in contemporary Cambodian society, highlighting that action and dialogue are continually needed to address social injustices. It is therefore essential to reconceptualise the role that speaking, criticising and analysing plays in combating social injustices. Action and dialogue are not mutually exclusive. Instead, they are intertwined and inseparable. Because of this, when it comes to addressing social injustices, it is never ‘enough said’. END NOTE
Between the time I drafted this article in June 2017 and its publication in October 2017, the situation for freedom of the press and democracy in Cambodia has deteriorated rapidly. On 24 August, independent Cambodian broadcasters including Radio Free Asia, Voice of Democracy and Voice of America were ordered to stop broadcasting ‘outside programs’ without authorisation.39 Around the same time, changes to visa requirements made it easier for the Government to deny visas to journalists who displease them.40 On 3 September, a midnight raid of the house of the leader of the opposition, Kem Sokha, resulted in his arrest, detention and being charged with treason.41 The allegations involve a 2014 interview which is alleged to suggest that he received support from the US Government.42 This is in defiance of his constitutionally-guaranteed parliamentary immunity.43 Less than 24 hours later, one of Cambodia’s most prominent and independent newspapers, The Cambodia Daily, was forced to shut down following extra-legal threats by the Government under the guise of tax evasion.44 The Cambodia Daily’s managing editors have been prevented from leaving the country and could well face prosecution.45 There is no wonder that the developments in Cambodia have been marked as the death of the dream of democracy46 and a ‘descent into outright dictatorship’.47 For me, it bears all the hallmarks of the fear of US-backed ‘traitors’ that echoed throughout the DK era.48 One thing that these developments do make clear is the inherent danger of assuming that it is ever ‘enough said’. In a country like Cambodia, the right to speak, to criticise and to call for action is a transient right that evidentially can be lost in a matter of months. It is clear that the fight to be able to speak freely and without fear will be a continual one. In Australia, we are undoubtedly privileged to be able to speak about social injustices without fear of threats or prosecution. But with the thought of my not-so-lucky Cambodian colleagues in mind, I genuinely believe that in any context it is dangerous to assume that it is ever ‘enough said’.
As has been illustrated, the idea that it is ‘enough said’ when it comes to addressing social injustices is problematic because it perpetuates the myths that action is more effective than 71
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Court of Conscience Issue 11 Enough Said October 2017 ISSN
1839-7204 Court of Conscience is published annually by the UNSW Law Society unswlawsoc.org EDITOR-IN-CHIEF
Ellen O’Rourke EDITORS
Nick Carey Jonathan Djasmeini Alex Field Anna Holtby Henry O’Callaghan Vijay Prakash Tamar Ruiz DESIGN
Alexander Tanazefti ARTWORK
Miri Badger PRINTING
Carbon8
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