Court of Conscience - Issue 10, 2016 by UNSW Law Society

Court of Conscience Giving Voice to Minority Issue 10, 2016

Contents

Court of Conscience Giving Voice to Minority Issue 10, 2016

EDITOR-IN-CHIEF

EDITORIAL TEAM

Angelina Yurlova is a fourth year Arts/Law student who has been promoted from editor to editorin-chief but, unfortunately, she has not found the same success in her career as a ballerina. She embraces art, anything dog-related, and the oxford comma with great enthusiasm. She is also an impenitent perfectionist.

Cristina Beretta is a fourth year Arts/Law student and baking aficionado who believes that an en-dash of sugar can make all the difference. While she is good at tempering her emotions, the same cannot be said of her skills with chocolate.

Christine Maibom is a fourth year Arts/Law student. When she isn’t studying, she enjoys cycling downhill, hanging out with her pet sausage dog, and convincing herself that being a lawyer is just as glamorous as it is on TV.

Amelia Brown is a fourth year Science/Law student who can read a whole novel in a day but cannot read a single chapter of BA in several weeks. She enjoys walking in the park and trying to avoid using AGLC rule 6.9.

Ellen O’Rourke is a third year Arts/Law student. She has recently given up on reality TV in favour of scrolling the UNSW Law Society Discussion Forum.

Paris Donnelly Fifth year, Arts/Law, overzealous, unapologetic, captivating. Five out of ten would recommend to a friend. William Laksana is a fourth year Commerce/ Law student. When not debating about the requisite mens rea of jaywalking or extolling the virtue of jabots, he may be heard practising his terrible Glaswegian accent. He also enjoys doing perfectly normal activities.

ILLUSTRATIONS

DESIGN

Miri Badger is a 20-year-old visual artist, studying at the National Art School. Her work has its roots in expressive figurative painting that explores a myriad of mediums and subject matters. Find Miri on Facebook (/badgerart) and Instagram (@miri_badger).

Nicholas Watts

Oliver Ray is a fourth year Arts/Law student who loves long baths, fresh raspberries and railing against neoliberalism. Despite his enthusiasm for tea, Oliver recognises the industry’s complicity in modern slavery and wonders if he’ll ever be able to enjoy anything again.

Editorial Angelina Yurlova

62 Justice or Just Us? ‘Riverbank’ Frank Doolan

Unfitness to Stand Trial: The Indefinite Detention of Persons with Cognitive Disabilities in Australia and the United Nations Convention on the Rights of Persons with Disabilities Piers Gooding, Sarah Mercer, Eileen Baldry and Anna Arstein-Kerslake

70 Giving Victims of Intimate Partner Violence Offences a Voice in Indigenous Sentencing Courts Elena Marchetti

20 Resisting Silence: Asylum Seekers and Voices of Conscience Linda Briskman 32 Minister Dutton’s Children: Guardianship of Unaccompanied Minors in Immigration Detention Natasha Naidu 40 Justice Investment and Community Intervention Rob White 50 ‘Please Give Us Answers’ Indigenous Incarceration in Australia: Strategies for Urgent Reform Nicholas Carey

UNSW Law Society unswlawsoc.org SOCIAL JUSTICE VICE PRESIDENT

Khushaal Vyas PRESIDENTS

Audrey Chan Justin Teo

80 Giving a Voice to Aboriginal People: Why Aboriginal People in Australia Need Wills More Than Everyone Else Prue Vines 88 ‘One Country, Two Systems’: The Middle Way for Protecting Human Rights in Hong Kong Johnson Man 98 Protecting Minority Languages and the Mute-ability of International and Australian Law Stephen Tully

Editorial

‘If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind’.1 – John Stuart Mill.

I welcome you to the 10th Issue of Court of Conscience. Given that Court of Conscience is celebrating its 10th anniversary, it is quite symbolic that this year we have 10 articles that respond to the 2016 thematic – ‘Giving Voice to Minority’. It is not an easy task to articulate a thematic that provides a meaningful stimulus while, at the same time, maintaining the integrity of the subject matter, especially when dealing with a sensitive topic such as ‘minority’. Although the phrase ‘giving voice’ is widely used in literature concerning minority groups, the premise needs to be problematised. What does it mean to give voice? Whose voice is it? Is it ours to give? Conceptually, the thematic seeks to transcend this idea of ‘giving a voice’ to a particular minority and, instead, shift the focus to an individual’s ability to give voice to issues that may be misunderstood, distorted, or overlooked by the majoritarian dialogue. This Issue features a diverse and unique collection of contributions submitted by academics from a variety of Australian universities, as well as a Wiradjuri Elder, a barrister, and UNSW Law students. In the context of the criminal justice system, Piers Gooding, Sarah Mercer, Eileen Baldry and Anna Arstein-Kerslake, as well as Elena Marchetti, advocate for a more positive justice experience by examining the implications of trials for persons with cognitive disabilities and exploring the benefits of Indigenous sentencing courts, respectively. The Australian treatment of asylum seekers is a pressing issue in both the media and academic discourse. Natasha Naidu draws attention to the way in which underage asylum seekers, one of the most vulnerable groups in our society, are denied a voice by a system that is plagued with conflict, whilst Linda Briskman emphasises the role of ‘people of conscience’, that is, asylum seeker advocates, in speaking out against the immorality of this system. Australians were appalled by the revelations of child abuse that led to the Royal Commission into the Protection and Detention of

John Stuart Mill, On Liberty (Longmans, Green, and Co, 1865) 10.

Court of Conscience

Children in the Northern Territory.2 With the recent release of the ABC Four Corners program Backing Bourke,3 it is clear that a new approach to Indigenous and youth incarceration is critical. In their articles, Rob White and Nicholas Carey both highlight one such approach – ‘justice reinvestment’. The authors underscore the serious injustice brought about under the current system and vividly illustrate the need for change that both incorporates and responds to community voices. We are honoured to publish the insights of ‘Riverbank’ Frank Doolan, a Wiradjuri Elder from the Dubbo region, who also argues in favour of a community-based approach as opposed to increased prison funding and hopes for reconciliation between all Australians. We are given a prescient reminder by Prue Vines and Stephen Tully about the potential of legal instruments to be mechanisms which ensure that the voices of minorities are heard. Johnson Man provides an international perspective through an examination of the ‘one country, two systems’ constitutional principle as a way to protect the freedom and rights of Hong Kong citizens. I would like to extend my utmost gratitude to the 2016 Court of Conscience Editorial Team. Over the past year, they have worked tirelessly to ensure that each article is of the highest standard. This publication is the culmination of their diligence, attention to detail, and enthusiasm. It has been a pleasure to work with such brilliant individuals. The cover, as well as each illustration, has been masterfully created by Miri Badger. Not only are her artworks beautiful – they are evocative and thought-provoking. The publication is crisp and professional and has come together seamlessly under the skill and guidance of Nicholas Watts. I am very grateful for his continued involvement with Court of Conscience. I would also like to acknowledge the UNSW Law Society and the UNSW Faculty of Law for their support of this publication. The 10th Issue of Court of Conscience is everything that I envisaged and more. Thank you to everyone who has made this vision a reality. I commend the authors on their depth and insight and for making a worthy contribution to the ongoing dialogue of Court of Conscience. Angelina Yurlova Editor-in-Chief 2. The Royal Commission is due to report by 31 March 2017. 3. Backing Bourke (Directed by Lisa McGregor, Australian Broadcasting Corporation, 2016).

Unfitness to Stand Trial: The Indefinite Detention of Persons with Cognitive Disabilities in Australia and the United Nations Convention on the Rights of Persons with Disabilities

Court of Conscience

Unfitness to stand trial laws in Australia potentially help accused persons with cognitive disabilities avoid unfair trials – in particular by avoiding proceedings in which they cannot participate. Yet such laws can create a separate and lesser form of justice that undermines due process rights and substantive equality. Moreover, unlike those tried and convicted, persons deemed unfit to stand trial may be indefinitely detained, potentially for longer than would follow a typical trial. Unequal treatment of this kind appears to violate fundamental rights enshrined in domestic and international human rights law; namely, rights to equal recognition before the law, access to justice, and liberty and security of the person. This article briefly outlines these issues with particular consideration of Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’). It also outlines a program of formal support being developed for accused persons with cognitive disabilities in three Australian jurisdictions by researchers at the University of Melbourne and the University of New South Wales. I INTRODUCTION

Laws on unfitness to stand trial – despite being framed as protective in nature – can have adverse consequences for accused persons with cognitive disabilities.1 Unfitness to stand trial laws allow courts to determine that a person cannot participate in or understand the criminal trial proceedings brought against him or her. A number of high-profile cases

Piers Gooding,* Sarah Mercer,** Eileen Baldry*** and Anna Arstein-Kerslake****

Dr Piers Gooding is a Post-Doctoral Research Fellow at the Melbourne Social Equity Institute and Disability Research Initiative, University of Melbourne. ** Ms Sarah Mercer is a JD graduate of the Melbourne Law School and Research Assistant at the Melbourne Social Equity Institute for the Unfitness to Stand Trial project. *** Eileen Baldry is a Professor of Criminology and Academic Chair, NSW Equity, Diversity and Inclusion Board at UNSW and a Chief Investigator for the Unfitness to Stand Trial project. **** Dr Anna Arstein-Kerslake is a lecturer at the Melbourne Law School, Founding Director of the Human Rights Law Clinic, and Academic Co-ordinator of the Disability Research Initiative at the University of Melbourne. She is also a Chief Investigator for the Unfitness to Stand Trial project. 1. The term ‘cognitive disabilities’ is used broadly here to refer to mental health-related disability, intellectual disability, acquired brain injury, communication disabilities, etc. Although not used in the UNCRPD, this term is increasingly used elsewhere in the disability and human rights field. See, eg, Anna Arstein-Kerslake, ‘An Empowering Dependency: Exploring Support for the Exercise of Legal Capacity’ (2014) 18 Scandinavian Journal of Disability Research 1; Eileen Baldry et al, ‘A Predictable and Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the Criminal Justice System’, (IAMHDCD Project Report, UNSW, October 2015) 31.

Court of Conscience

Unfitness to Stand Trial Piers Gooding, et al

have highlighted the laws’ potentially inequitable outcomes. For example, a 14-year-old Indigenous teenager from Western Australia, ‘Jason’, was reported to have been detained for over 11 years after he was found unfit to stand trial for a charge of manslaughter.2 Comparable sentences for juvenile detention were three to four years following conviction.3 In 2014, the Australian Human Rights Commission reported that the Commonwealth and Northern Territory governments violated the rights of two Indigenous men who were detained indefinitely in the Alice Springs Correctional Centre after being found unfit to plead.4 Law reform efforts across Australia in recent years have sought to address concerns with unfitness to stand trial laws.5 One factor influencing these efforts is Australia’s ratification of the UNCRPD6 in 2007. A common recommendation of reformers, drawing upon the UNCRPD, is to introduce formal support for accused persons with disabilities to enhance participation in criminal proceedings. A number of initiatives are underway to develop such support, including a cross-jurisdictional research initiative that aims to develop solutions in law, policy and practice to assist accused persons with cognitive disabilities at risk of being unable to participate in criminal

8 2. ‘“Urgent Need” For Law Change as Mentally-Impaired Accused Detained Indefinitely, WA Chief Justice Wayne Martin Says’ ABC News (online), 10 July 2015 <http://www.abc.net.au/news/2015-07-10/ push-for-mentally-impaired-accused-law-change-in-wa/6611010>. 3. See, eg, R v S (a child) (No 2) (1992) 7 WAR 434; R v T (a child) (1993) 17 MVR 100. 4. KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80. 5. Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (2014); New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013); Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014). See also Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013); Department of the Attorney General (WA), ‘Review of the Criminal Law (Mentally Impaired Accused) Act 1996’ (Final Report, Department of the Attorney General (WA), April 2016). 6. Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). See also Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) 3–5; Victorian Law Reform Commission, above n 5, 30; New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Diversion, Report No 135 (2012) 34; Department of the Attorney General (WA), above n 5, 73–4.

proceedings.7 The project is being led by researchers at the University of Melbourne and the University of New South Wales, in partnership with community legal centres in three Australian jurisdictions. The project has a strong focus on the provision of assistance to Indigenous accused persons with cognitive disabilities who are disproportionately subject to unfitness to stand trial determinations. II UNFITNESS TO STAND TRIAL: KEY ISSUES

Unfitness to stand trial laws have been described as having the purposes of protecting ‘the integrity of a criminal trial (and, arguably, the criminal law itself)’ which would ‘be prejudiced if the defendant does not have the ability to understand and participate in a meaningful way’.8 Australian unfitness to stand trial laws are framed as a protective measure to shield an accused with cognitive disabilities from unfair trials,9 while at the same time ensuring efficient proceedings (by diverting the person to relevant services), and seeking community protection.10 The unfitness to stand trial doctrine has been adopted in every Australian jurisdiction.11 The current test for unfitness was articulated in the case of R v Presser,12 which has since been codified into legislation in most jurisdictions or incorporated implicitly through the common law.13 7.

8. 9. 10. 11.

12. 13.

Melbourne Social Equity Institute, Unfitness to Plead and Indefinite Detention of Persons with Cognitive Impairments: Addressing the Legal Barriers and Creating Appropriate Alternative Supports in the Community (17 November 2015) The University of Melbourne <http://socialequity.unimelb.edu.au/research/projects/disability-and-mental-health/ unfitness-to-plead>. Australian Law Reform Commission, Report No 124, above n 5, 73. Thomson Reuters, The Laws of Australia (at 1 November 2013) 9 Mental Impairment (Insanity) and Fitness to Plead, ‘3 Fitness to be Tried’ [9.3.1950]. Department of the Attorney General (WA), above n 5, 36 [54]. Here it is considered to be the paramount purpose of the unfitness to stand trial scheme. Crimes Act 1900 (ACT) pt 13; Crimes Act 1914 (Cth) pt IB div 6; Mental Health (Forensic Provisions) Act 1900 (NSW) pt 2; Criminal Code Act (NT) sch 1 pt 2A div 3; Mental Health Act 2000 (Qld) pt 6; Criminal Law Consolidation Act 1935 (SA) pt 8A Div 3; Criminal Justice (Mental Impairment) Act 1999 (Tas) pt 2; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) pt 2; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) pt 3. [1958] VR 45. See Crimes Act 1900 (ACT) s 311; Crimes Act 1914 (Cth) Pt IB Div 6; Criminal Code Act (NT) s 43J; Criminal Law Consolidation Act 1935 (SA) s 269H; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 8; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 9; R v Taylor

Court of Conscience

Unfitness to Stand Trial Piers Gooding, et al

The test considers the accused person’s ability to: 1. Understand the nature of the charge; 2. Plead to the charge and exercise the right of challenge; 3. Understand the nature of the proceedings; 4. Follow the course of the proceedings; 5. Understand the substantial effect of any evidence that may be given in support of the prosecution; and 6. Make a defence or answer the charge.14 The Australian Law Reform Commission raised concerns that the Presser criteria did not take into account the ‘possible role of assistance and support for defendants’.15 This recommendation was echoed by the New South Wales Law Reform Commission16 and the Victorian Law Reform Commission.17 While the test of unfitness is largely the same throughout Australia, jurisdictions differ in the alternative procedures that follow, including options for disposition. A Procedures after a finding of unfitness

Once a determination of unfitness has been made, most jurisdictions18 provide ‘special hearings’ to test the merits of the charge against the accused. ‘Special hearings’ are essentially truncated trials designed to ensure that an individual’s liberty is not restricted without proper

14. 15. 16. 17. 18.

[2014] SASCFC 112 [9]; Kevasarajah v R (1994) 181 CLR 230, 243–5; R v Gallagher [2012] NSWSC 484 [11]; Berg v DPP (Qld) [2015] QCA 196 [54]. Kesavarajah v R (1994) 181 CLR 230, 245. Australian Law Reform Commission, Discussion Paper No 81, above n 6, 163 [7.32]. New South Wales Law Reform Commission, Criminal Responsibility and Consequences, above n 5, 35. Victorian Law Reform Commission, above n 5, 87 [3.116], 89. Australian Capital Territory, New South Wales, Victoria, South Australia, Tasmania and Northern Territory. Crimes Act 1900 (ACT) s 316; Mental Health (Forensic Provisions) Act 1900 (NSW) s 21; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16; Criminal Law Consolidation Act 1935 (SA) s 269M; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 16; Criminal Code Act 1983 (NT) s 43W.

Court of Conscience

Unfitness to Stand Trial Piers Gooding, et al

basis.19 At the Commonwealth level there is no provision for ‘special hearings’, although the judge must consider that a prima facie case has been established.20 Queensland and Western Australia do not require ‘special hearings’. In Queensland the accused person is referred to a mental health court.21 In Western Australia however, before making a custody order, the judge needs only to be satisfied that it is appropriate to do so having regard to, among other factors, ‘the strength of the evidence against the accused’.22 However, this often involves only cursory consideration of the evidence.23 In all jurisdictions, even those seen as having the most up-to-date laws, concerns have been raised that the procedures following a finding of unfitness to stand trial do not secure due process rights on an equal basis with others.24 Potential disadvantages include a lack of the full range of defences and less opportunities to test the prosecution’s case.25 In New South Wales, for example, an accused person with cognitive disabilities, who is determined to be unfit to stand trial, is assumed to have pleaded not guilty in relation to the charge which removes the benefits of entering an early guilty plea in sentence mitigation.26

19. See, eg, Mental Health (Forensic Provisions) Act 1900 (NSW) s 19. In Subramaniam v R (2004) 211 ALR 1, 12 [40], the High Court explained that the purpose of these hearings is: first to see that justice is done, as best as it can be in the circumstances, to the accused person and the prosecution. She is put on trial so that a determination can be made of the case against her. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives an accused person an opportunity of being found not guilty in which event the charge will cease to hang over her head, and if she requires further treatment that it may be given to her outside the criminal justice system.

20. Crimes Act 1914 (Cth) s 20B(3). 21. Mental Health Act 2000 (Qld) s 257. 22. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 16(6)(a), 19(5)(a). 23. Western Australia v Tax [2010] WASC 208 [3] (Martin CJ); Western Australia v Stubley [No 2] [2011] WASC 292 [19]. 24. See Mindy Sotiri, Patrick McGee and Eileen Baldry, ‘No End in Sight: The Imprisonment and Indefinite Detention of Indigenous Australians with a Cognitive Impairment’ (Report, Aboriginal Disability Justice Campaign, September 2012); Eileen Baldry, ‘Disability at the Margins: Limits of the Law’ (2014) 23 Griffith Law Review 357, 370–88. 25. Anna Arstein-Kerslake et al, ‘Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities’ Human Rights Law Review (forthcoming); Piers Gooding et al, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ Melbourne University Law Review (forthcoming). 26. Kerri Eagle and Andrew Ellis, ‘The Widening Net of Preventative Detention and the Unfit

B Dispositions

Dispositions available following a finding of unfitness to stand trial differ between jurisdictions. Dispositions include custodial orders or non-custodial supervision orders. Non-custodial supervision orders often include conditions aimed at rehabilitation through medical treatment, counselling and other forms of service provision. Custodial orders vary considerably across Australia. Some jurisdictions allow for indefinite detention ‘until released by order of the Governor’27 (Western Australia) or a mental health tribunal (Tasmania and Queensland),28 while others provide for ‘nominal terms’ (Northern Territory and Victoria),29 where the accused is brought back after a specified term for ‘major review’.30 The third model of custodial disposition is a limiting term (New South Wales and South Australia),31 which is based on ‘the best estimate of the sentence the court would have considered appropriate’ had they been tried and ‘found guilty of that offence’.32 This seemingly avoids the potential for indefinite detention on the basis of impairment and the risk that an innocent accused would prefer to plead guilty than face indefinite detention.33 However, even in New South Wales, health authorities may apply for extensions of custodial orders,34 meaning the spectre of indefinite detention remains. Uniquely, the Commonwealth unfitness to stand trial law was drafted with the express intention of abolishing indefinite detention,35 and apfor Trial’ (2016) 90 Australian Law Journal 172. 27. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 24(1). 28. Tasmania and Queensland. See Criminal Justice (Mental Impairment) Act 1999 (Tas) s 37; Mental Health Act 2000 (Qld) s 200. 29. Criminal Code Act 1983 (NT) s 43ZG; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 28(1). 30. Criminal Code Act 1983 (NT) s 43ZG; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 35. 31. Mental Health (Forensic Provisions) Act 1990 (NSW) s 23(1)(b); Criminal Law Consolidation Act 1935 (SA) s 269O(2). 32. Ibid s 23(1)(b). 33. Suzie O’Toole, Jodie O’Leary and Bruce D Watt, ‘Fitness to Plead in Queensland’s Youth Justice System: The Need for Pragmatic Reform’ (2015) 39 Criminal Law Journal 40, 42. 34. See Mental Health (Forensic Provisions) Act 1990 (NSW) sch 1. 35. Commonwealth, Parliamentary Debates, House of Representatives, 5 October 1989, 1603 (Robert Brown, Minister for Land Transport and Shipping) <http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber%2Fhansardr%2F1989-10-05%2F0124;query=Id% 3A%22chamber%2Fhansardr%2F1989-10-05%2F0000%22>.

Unfitness to Stand Trial Piers Gooding, et al

pears to provide for a truly definite term that must not exceed the maximum period that could have been imposed following conviction of the original charge.36 However, judicial scrutiny of this provision is lacking.

III REFORM TRENDS: PROCEDURAL FAIRNESS, SUBSTANTIVE EQUALIT Y AND ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

Law reform commissions and other commentators have recognised that an ideal outcome for accused persons with disabilities is to proceed to the normal criminal trial process whenever possible. The Australian Human Rights Commission has stated that a full trial is ‘best not just for the defendant, but also for those affected by an offence and society more generally’.37 Further: It is in a defendant’s interests to participate in the full trial process because it includes procedural protections, but also because of the adverse consequences if found unfit to stand trial, including the real risk of indefinite detention.38

The Commission made a series of recommendations in its submission to a 2016 Senate Inquiry into the Indefinite Detention of People with Cognitive and Psychiatric Impairment In Australia (‘the Inquiry’).39 The Inquiry marks a recent addition to increasing law and policy reform activity related to disability in Australia in recent years. The UNCRPD is an important driver in this trend, and can be seen to have given greater impetus and legitimacy to the national focus on disability. Concerns have been raised that unfitness to stand trial laws across Australia contravene a number of articles of the UNCRPD by virtue of creating a separate and lesser form of justice for persons with cognitive disabilities.40 It is outside the scope of this brief article to detail these 36. Crimes Act 1914 (Cth) s 20BC(2). 37. Australian Human Rights Commission, Submission No 6 to the Senate Community Affairs References Committee, Inquiry into the Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia, March 2016, 16–17 [62]. 38. Ibid 17 [62]. 39. Ibid 5–6. 40. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Australia, CRPD/C/AUS/CO/1 (21 October 2013) 4 [31]; Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Brazil, UN Doc CRPD/C/BRA/CO/1 (29 September 2015) 4 [30].

Court of Conscience

concerns, which have been elaborated upon elsewhere.41 In summary, concerns have been raised that unfitness to stand trial laws violate the prohibition of discrimination on the basis of a disability,42 the right to equal recognition before the law,43 the right of access to justice,44 and the right to liberty and security of the person.45 The forced medical treatment that can follow findings of unfitness may also violate a number of rights set out in the UNCRPD.46 The United Nations Committee on the Rights of Persons with Disabilities, an independent body of experts appointed by ‘States Parties’ to the UNCRPD to monitor the implementation of the UNCRPD, has released a statement calling on States Parties such as Australia to remove declarations of unfitness to stand trial from their criminal laws.47 The Committee raised particular concerns with provisions permitting indefinite detention on the basis of disability.48 The positive obligations set out in the UNCRPD dovetail with calls to increase support measures to enable persons with disabilities to access justice on an equal basis with others.49 These obligations include the 41. See Piers Gooding et al, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (2017) 40(3) Melbourne University Law Review (forthcoming); Piers Gooding, Sarah Mercer, Bernadette McSherry and Anna Arstein-Kerslake, ‘Supporting Accused Persons with Cognitive Disabilities to Participate in Criminal Proceedings in Australia – Avoiding the Pitfalls of Unfitness to Stand Trial Laws’ (forthcoming); Anna ArsteinKerslake, Piers Gooding, Louis Andrews and Bernadette McSherry, ‘Human Rights and Unfitness to Plead: The Demands of the Convention on the Rights of Persons with Disabilities’ (forthcoming). 42. Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) arts 2, 3, 5. 43. Ibid art 12. 44. Ibid art 13. 45. Ibid art 14. 46. Ibid arts 14, 17, 25. 47. Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities, CRPD, 14th sess (adopted 17 August–4 September 2015) [16]. See also Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Ecuador, UN Doc CRPD/C/ ECU/CO/1 (27 October 2014) [29(b)]; Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of Republic of Korea, UN Doc CRPD/C/KOR/CO/1 (29 October 2014) [28]. 48. Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities, CRPD, 14th sess (adopted 17 August–4 September 2015) [20]. 49. See also Stephanie Ortoleva, ‘Inaccessible Justice: Human Rights, Persons with

Unfitness to Stand Trial Piers Gooding, et al

provision of support to exercise legal capacity50 and ‘procedural and age-appropriate accommodations’ to access justice on an equal basis with others.51 Such ‘positive liberties’ give greater impetus to courts to modify proceedings and provide supports to improve accessibility. As noted, the current test for unfitness to stand trial does not incorporate a requirement to ensure supports to ‘optimise’ a person’s fitness to stand trial, as has been recommended by the Australian Law Reform Commission, the Victorian Law Reform Commission and the New South Wales Law Reform Commission.52 The Victorian Law Reform Commission noted that ‘[t]he importance of support measures in the unfitness to stand trial process was one of the strongest themes to come out of the Commission’s review’ of the issue.53 Further, support measures can ‘optimis[e] an accused’s fitness where they might otherwise be unfit’54 and yet ‘support measures … are not necessarily considered, provided or available’.55 Importantly, no such support measures have been evaluated in Australia. While unfitness to plead applies to persons with cognitive disabilities accused of indictable offences, a form of indefinite detention can be imposed on people accused of lesser offences. Roseanne Fulton experienced this form of detention (indefinite remand) for driving offences. Indigenous Australians experience this type of detention disproportionately.56 IV THE UNFITNESS TO STAND TRIAL PROJECT’S SUPPORTED DECISION-MAKING MODEL

Researchers at the University of Melbourne and the University of New South Wales have collaborated with several community legal Disabilities and The Legal System’ (2011) 17 ILSA Journal of International & Comparative Law 282; Eilionoir Flynn, Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities (Ashgate, 2015) 11–16. 50. UNCRPD art 12(3). 51. Ibid art 13. 52. See New South Wales Law Reform Commission, Criminal Responsibility and Consequences, above n 5, 20–1 [2.22]–[2.28]; Victorian Law Reform Commission, above n 5, 89 [3.124]–[3.125]; Australian Law Reform Commission, Report No 124, above n 5, 199-200 [7.35]–[7.40]. 53. Victorian Law Reform Commission, above n 5, 89 [3.124]. 54. Ibid. 55. Ibid 89 [3.125]. 56. Sotiri, McGee and Baldry, above n 23; Baldry, above n 23, 370–88.

Court of Conscience

centres across Australia to develop and evaluate a model of support for accused persons with cognitive disabilities at risk of being deemed unfit to stand trial (‘Unfitness to Stand Trial project’).57 The project aims to analyse the social, legal and policy issues that lead to unfitness to stand trial determinations and indefinite detention. The project will have a specific focus on Indigenous people, who are disproportionately affected by unfitness to stand trial laws. Not only are Aboriginal and Torres Strait Islanders over-represented in the criminal justice system, they are also more likely to experience cognitive disabilities. The Australia-wide incarceration rate for Aboriginal and Torres Strait Islander prisoners aged 18 years and over is 27 per cent, whereas the total Aboriginal and Torres Strait Islander population aged 18 years and over in 2015 was approximately two per cent of the Australian population aged 18 years and over.58 The researchers will make recommendations for law and policy, including proposals for good practice models in supported decision-making for accused persons with disabilities. As noted, despite recommendations from three major law reform agencies to introduce formal support for accused persons with cognitive disabilities to prevent unfitness determinations,59 no such measures have been implemented in any Australian jurisdiction. This project seeks to address this gap. It will develop and implement a support program, working within three community legal centres – namely, the Intellectual Disability Rights Service (New South Wales), the Victorian Aboriginal Legal Services (Victoria), and the North Australian Aboriginal Justice Agency (Northern Territory) – to provide assistance to accused persons with cognitive disabilities at risk of being deemed unfit to stand trial or being unable to participate in proceedings against them. This practical research will be combined with an investigation into the broader requirements of international human 57. This project is jointly funded by Commonwealth, state and territory governments under the National Disability Special Account, administered by the Department of Social Services on behalf of the Commonwealth, state and territory Research and Data Working Group. 58. Australian Bureau of Statistics, ‘4517.0 – Prisoners in Australia’ (11 December 2015) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20 Subject/4517.0~2015~Main%20Features~Aboriginal%20and%20Torres%20Strait%20 Islander%20prisoner%20characteristics~7>. 59. See New South Wales Law Reform Commission, Report No 138, above n 5, 35 [2.86] (recommendation 2.2); Victorian Law Reform Commission, above n 5, 89 [3.126] (recommendation 18); Australian Law Reform Commission, Report No 124, above n 5, 17 (recommendation 7–1).

Unfitness to Stand Trial Piers Gooding, et al

rights law on unfitness to stand trial laws, and ways to improve procedural protections and substantive equality for persons with disabilities in the criminal justice system. V CONCLUSION

At a minimum, Australiaâ&#x20AC;&#x2122;s obligations under international human rights law require the availability of effective support for accused persons at risk of being deemed unfit to stand trial or being unable to participate in proceedings against them due to disability. Such steps will facilitate equal recognition before the law, access to justice and freedom from deprivation of liberty on the basis of disability. The Unfitness to Stand Trial project will offer evidence-based law and policy reform recommendations to better ensure participation by persons with disabilities in the criminal justice system on an equal basis with others.

Resisting Silence: Asylum Seekers and Voices of Conscience

Court of Conscience

‘ … there are unbearable things all around us … The worst attitude is indifference’.1 – Stéphane Hessel. I INTRODUCTION

I am an academic human rights activist, who for around 15 years has garnered and disseminated information on asylum seeker detention in the hope of influencing policy and opinion. From 2005, I was a convener of the People’s Inquiry into Detention (‘the People’s Inquiry’),2 a collaborative endeavour initiated by the Australian Council of Heads of Schools of Social Work. In undertaking this social action inquiry there was hope that the egregious findings would make self-evident the immorality of asylum seeker detention. More than a decade after commencing this undertaking, asylum seeker advocates lament that politics in this sphere have regressed, and despite harsh rebuke from human rights bodies, the heartlessness of government-induced misery continues unabated. The gulf between the government’s quest for border security and advocates’ quest for human security widens.3 But what is increasingly clear from the People’s Inquiry and beyond is the importance of documenting narratives derived from experiences of asylum seeker detention. As this article will reveal, this quest is becoming increasingly difficult. This article presents a brief overview of Australia’s asylum seeker policies and the arguments promulgated by government for maintaining mandatory detention and extending it beyond Australia’s borders. It then examines the manner in which the silencing of ‘people of conscience’4 has occurred and showcases endeavours to overcome this purposeful exclusion. The main focus is offshore detention as this has been subject to strident admonition in recent years.

Linda Briskman*

* Professor of Human Rights at the Swinburne Institute for Social Research. 1. Stéphane Hessel, Time for Outrage: Indignez-vous! (Hachette Book Group, 2011) 11. 2. Linda Briskman, Susie Latham and Chris Goddard, Human Rights Overboard: Seeking Asylum in Australia (Scribe, 2008). 3. Linda Briskman, ‘A Clash of Paradigms for Asylum Seekers: Border Security and Human Security’ in Bee Chen Goh, Baden Offord and Rob Garbutt (eds), Activating Human Rights and Peace: Theories, Practice and Contexts (Ashgate, 2012) 175. 4. I use the term ‘people of conscience’ to denote asylum seeker advocates, including immigration detention employees who have spoken out about what they witnessed in the course of their work.

Resisting Silence Linda Briskman

II THE SCOURGE OF ASYLUM SEEKER DETENTION

Arguments made by the government for the mandatory detention of asylum seekers are spurious. The justifications range from border control and deterrence of others to the integrity of Australia’s refugee program. The term ‘People Smugglers Business Model’ entered the Australian lexicon during Labor Prime Minister Kevin Rudd’s term of office, gaining traction through ‘sheer repetition’.5 Attempts to control the ‘smuggler trade’ continue, a trade that is depicted as replete with ‘callous opportunists taking advantage of the vulnerable and the desperate’.6 Alison Mountz contends that human smuggling is in many ways routine.7 It is, she points out, an historical phenomenon that has existed for as long as nation states have asserted control of mobility across their borders: Due to the sensationalism of stories about smuggling and human interest in the securitization of national borders, the media partakes in and promulgates these events as crises. Escalated media coverage heightens public fears about sovereign control of migration.8

More recently, with the advent (2001), abandonment (2008) and reinstatement (2012) of offshore detention in Nauru and Papua New Guinea (Manus Island), a policy imperative has been constructed around the illegitimate ‘drownings’ argument’.9 The parable of preventing deaths at sea represents a sustained case for foiling asylum seeker flows, with the force of government propaganda largely unquestioned by the mainstream population. The argumentation connects with hyperbole about people smugglers and the illegality of boats. Stopping deaths at sea is scandalous deception. It arose after the tragic boat crash on the shores 5. Gabriella Sanchez, ‘The Myth of the People Smugglers’ “Business Model”’, The Conversation (online), 27 July 2013 <http://theconversation.com/ the-myth-of-the-people-smugglers-business-model-16426>. 6. Sue Hoffman, ‘“If We Die We All Die Together”: Risking Death at Sea in Search of Safety’ in Lynda Mannik (ed), Migration by Boat: Discourses of Trauma, Exclusion and Survival (Berghahn, 2016) 219, 220. 7. Alison Mountz, Seeking Asylum: Human Smuggling and Bureaucracy at the Border (University of Minnesota Press, 2010) xv. 8. Ibid. 9. Robin Rothfield (ed), The Drownings’ Argument. Australia’s Inhumanity: Offshore Processing of Asylum Seekers (Labor for Refugees, 2014).

Court of Conscience

of Christmas Island in 2010, in which 50 asylum seeker men, women and children died. Incongruously, whilst saving lives is the rhetorical device used by the government to convince Australians of its compassion, incremental cruel policies are designed and implemented to deter boat arrivals.10 This raises the question of proportionality and punishment of one group to influence the behaviour of others. Australia’s policies violate the provisions of the 1951 Refugee Convention11 and other international agreements that it has signed. These include the International Convention on Civil and Political Rights (‘ICCPR’),12 the Convention Against Torture (‘CAT’)13 and the Convention on the Rights of the Child (‘CROC’)14.15 The United Nations Human Rights Committee has persistently criticised Australia for violating the prohibition on arbitrary detention of the ICCPR.16 The United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has found that various aspects of Australia’s asylum seeker policies violate the CAT.17 Asylum seeker advocates, including international human rights bodies, non-government organisations (‘NGOs’), faith groups

10. Linda Briskman and Michelle Dimasi, ‘Re-living Janga: Survivor Narratives’ in Lynda Mannik (ed), Migration by Boat: Discourses of Trauma, Exclusion and Survival (Berghahn, 2016) 253–4. 11. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954). 12. International Convention on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); 13. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). 14. Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990). 15. Tania Penovic, ‘Privatised Immigration Detention Services: Challenges and Opportunities for Implementing Human Rights’ in Bronwyn Glynis Naylor, Julie Debeljak and Anita Mackay (eds), Human Rights in Closed Environments (The Federation Press, 2014) 10, 14. 16. Rose Moloney, ‘Crikey Clarifier: Does Australia’s Refugee Policy Breach UN Rules?, Crikey (online), 29 November 2012 <https://www.crikey.com.au/2012/11/29/ crikey-clarifier-does-australias-refugee-policy-breach-un-rules/>. 17. Human Rights Law Centre, UN Finds Australia’s Treatment of Asylum Seekers Violates the Convention Against Torture (9 March 2015) <http://hrlc.org.au/un-findsaustralias-treatment-of-asylum-seekers-violates-the-convention-againsttorture/ 9 March, 2015>.

Resisting Silence Linda Briskman

and academics condemn the cruelty of offshore detention, with detention of children in Nauru breaching CROC provisions. The ‘Nauru files’ – leaked incident reports published by The Guardian – revealed that of the 2000 reports made by detention staff, half concerned children.18 Moving people, including children, offshore is a process from which many people profit, and is what the government accuses people smugglers of doing.19 Transporting children to detention in Nauru constitutes ‘commercialised trafficking’ in children.20 Since the introduction of mandatory immigration detention in 1992, both major political parties have spearheaded ruthless methods, cloaked as rational policy, aimed at deterring asylum seeker boat arrivals.21 Fortified by the relative popularity of mandatory detention provisions, a raft of harsh measures have followed. These include temporary visa provisions, slow claims processing for people released from detention and militarisation of asylum seeker deterrence including boat turn backs. Competing with the trope of the People Smugglers Business Model, there has been an accompanying chant of ‘Stop the Boats’, whatever the human consequences. Detention centre sites have shifted from time to time but have included metropolitan, rural and remote settings and Australia’s Indian Ocean Territory of Christmas Island, far from the Australian mainland. Criticism of mandatory detention has increased since offshore facilities were established, but to no avail. III TACTICS OF SILENCING

In 2007, Robert Manne wrote of the threat to democracy under the government of Prime Minister John Howard:

Court of Conscience

The health of a democracy relies on many different things: limited government; strong civil society; the independence of autonomous institutions; the encouragement of dissident opinion, wide-ranging debate. All these values are presently under threat.22

The situation has regressed since Manne penned these words, in particular the attack on civil society and even bans on dissident opinion. Intentional silencing erodes not only rights to free speech but also inhibits dialogue and negotiation. The mere practice of immigration detention places asylum seekers out of sight and out of mind. Being nameless through identification by numbers reinforces invisibility.23 Secrecy is a privatisation principle of for-profit detention providers. Through contractual arrangements with NGOs, similar commercial-in-confidence principles apply, reducing transparency and obfuscating the public’s right to know. With both media restrictions on visiting offshore sites and limited human rights monitoring, secrecy is a pathway to abusive practices. The media has had almost no access to detention sites, exacerbated by their distant locations and visa restrictions in countries that house offshore detention centres. With rare exceptions, reporting is often undertaken by subterfuge, thanks to the determination of a small but significant number of determined journalists. Combined with the lack of journalistic opportunities are communication restrictions for immigration detainees with limited access to the Internet. Nonetheless, there have been some attempts to bypass controls. Articles by Manus Island detainee Behrouz Boochani about lived experiences in detention have been published in the progressive outlet The Saturday Paper, which will be illustrated further below. IV OVERCOMING SILENCE: VOICES OF CONSCIENCE

18. Nick Evershed et al (eds), ‘The Lives of Asylum Seekers in Detention Detailed in a Unique Database’, The Guardian (online), 10 August 2016 <http://www.theguardian. com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylumseekers-in-detention-detailed-in-a-unique-database-interactive>. 19. Linda Briskman and Chris Goddard, ‘Australia Trafficks and Abuses Asylum Seeker Children’, The Age (online), 25 February 2014 <http://www.theage.com.au/comment/ australia-trafficks-and-abuses-asylum-seeker-children-20140224-33cxs.html>. 20. Ibid. 21. See details on policies and ‘mythbusting’ at: Refugee Council of Australia, Mythbusters and Facts and Figures (2016) Refugee Council of Australia <http://www.refugeecouncil. org.au/get-facts/>.

Detained asylum seekers have been active participants in exposing human rights abuses and countering the relentless propaganda of government. Protest has been a feature of immigration detention as a dis22. Robert Manne, ‘Foreword’ in Clive Hamilton and Sarah Maddison (eds), Silencing Dissent: How the Australian Government is Controlling Public Opinion and Stifling Debate (Allen and Unwin, 2007) vii, ix. 23. Roger Cohen, ‘Australia’s Offshore Cruelty’, The New York Times (online), 23 May 2016 <http://www.nytimes.com/2016/05/24/opinion/australias-offshore-cruelty. html?_r=0>.

Resisting Silence Linda Briskman

‘Since the introduction of mandatory immigration detention in 1992, both major political parties have spearheaded ruthless methods, cloaked as rational policy, aimed at deterring asylum seeker boat arrivals. Fortified by the relative popularity of mandatory detention provisions, a raft of harsh measures have followed.’

Court of Conscience

cursive struggle for reinstatement as right-bearing human beings.24 Fire and riot have characterised asylum seeker agency and voice, sometimes with tragic consequences, as with the murder of Iranian Reza Barati on Manus Island in 2014.25 Suicides and attempted suicides have drawn attention to the plight of asylum seekers. One of the most shocking incidents was the self-immolation of Omid Masoumali on Nauru in April 2016, which became visible to the public through television imagery.26 Detainees have found ways to speak to the media, including Boochani who wrote about health conditions on Manus Island: … there are dozens of people here who suffer from infections, from joint and internal diseases. Hot and humid weather, intense psychological pressure and shortage of sanitary facilities have infected many refugees. Three hundred people take pain pills daily.27

My interest is in probing the role of ‘the professions’ in speaking out against the odds. Faced with the dual loyalty paradox of where their obligations lie, health and welfare personnel are faced with the choice of silence or speaking out against the injustices they witness. Previously contracted NGOs such as the Salvation Army and Save the Children have employed personnel from my own profession of social work in offshore sites. This is alarming because social work is a profession with a Code of Ethics that not only speaks of human rights and social justice, but also calls on social workers to strive to eliminate human rights violations.28 With the impossibility of being heard by their employing organisations, 24. Lucy Fiske, Insider Resistance: Understanding Refugee Protest Against Immigration Detention in Australia, 1999–2005 (PhD Thesis, Curtin University, 2012) v. 25. See Eric Tlozek, ‘Reza Barati Death: Two Men Jailed Over 2014 Murder of Asylum Seeker at Manus Island Detention Centre’, ABC News (online), 19 April 2016 <http://www.abc.net.au/news/2016-04-19/ reza-barati-death-two-men-sentenced-to-10-years-over-murder/7338928>. 26. See Peter Lloyd, ‘Omid Masoumali, Refugee Who Died after Setting Himself on Fire, ‘Suffered Without Medical Care’, ABC News (online), 2 May 2016 <http://www.abc.net.au/news/2016-05-02/ omid-masoumali-without-proper-medical-care-for-hours,-says-wife/7374884>. 27. See Behrouz Boochani, ‘Manus Island’s Appalling Health Care Record’, The Saturday Paper (online), 16 April 2016 <https://www.thesaturdaypaper.com.au/news/ politics/2016/04/16/manus-islands-appalling-health-care-record/14607288003132>. 28. Australian Association of Social Workers, ‘Code of Ethics’ (Paper presented at the Australian Association of Social Workers’ Annual General Meeting, Brisbane, 12 November 2010).

Court of Conscience

Resisting Silence Linda Briskman

social workers were among people of courage who anonymously contributed to a group statement in 2013 to draw public opinion to the plight of asylum seekers on Nauru. The workers told of watching helplessly as those who are mandatorily detained inflicted self-harm, and of trying to ‘motivate the hundreds of men on hunger strike to eat again’.29 The 2016 film Chasing Asylum30 features interviews with former and current social welfare professionals from the Nauru and Manus Island detention sites – inexperienced, unprepared and traumatised by their own powerlessness. Health professionals have broken codes of silence. Psychologist Paul Stevenson made fourteen ‘deployments’ to Nauru and Manus Island, concluding that the Australian government is deliberately inflicting upon people the worst trauma he has ever seen.31 His examples documented in The Guardian include six unaccompanied boys attempting mass suicide, an asylum seeker opening his stomach and a three-year old boy molested by a guard. And then there are medical practitioners who have not only refused to release from hospital a child destined for return to detention, but also stood together to demand the release of all children from detention, citing severe physical, mental, emotional and social concerns.32 Doctors have continually spoken out, for as Karen Zwi and Nicholas Talley state: ‘[f]ew issues have united the health profession as strongly as the dissatisfaction with our country’s response to people fleeing persecution’.33 For John-Paul Sanggaran, the ethical course of action is for medical practitioners to boycott working in asylum seeker detention. He states:

29. Salvation Army Workers, ‘Nauru Staff Condemn Cruel Conditions’, Indymedia (online), 26 July 2013 <http://indymedia.org.au/2013/07/26/nauru-staff-condemn-cruelconditions.html>. 30. Chasing Asylum (Directed by Eva Orner, 2016). 31. Paul Stevenson on Australia’s Immigration Detention Regime: ‘Every Day is Demoralising’ (Edited by Josh Wall, Ben Doherty and David Marr, The Guardian, 2016) 2:19 <https://www.theguardian.com/australia-news/video/2016/jun/20/ paul-stevenson-on-australias-detention-regime-every-day-is-demoralising-video>. 32. Patrick Hatch, Judith Ireland and Chloe Booker, ‘Royal Children’s Hospital Doctors Refuse to Return Children to Detention’, The Age (online), 11 October 2015 <http:// www.theage.com.au/victoria/royal-childrens-hospital-doctors-refuse-to-return-children-to-detention-20151010-gk63xm.html>. 33. Karen Zwi and Nicholas Talley, ‘Death in Offshore Detention: Predictable and Preventable’, The Conversation (online), 26 April 2016 <https://theconversation. com/death-in-offshore-detention-predictable-and-preventable-58398>.

Right now we all risk being bystanders. As doctors, the thought of being a bystander in this situation should be appalling. For us to be serious in this matter we must take effective action. The only course left to us is to refuse to participate.34

Offshore detention sites have employed an array of professional bodies, all of which are bound by professional ethics and practice norms. Not only have ethical codes and norms been thwarted by confidentiality agreements, but also through punitive legislative provisions. In 2015, the Border Force Act35 made it a crime punishable by two years imprisonment for anyone who engages in work for the Department of Immigration to disclose information obtained by them in the course of their work.36 Lawyers Greg Barns and George Newhouse suggest that this turns the Immigration Department into a secret security organisation with police powers.37 Although this provision arguably terrifies people of conscience from speaking out publicly when they bear witness to abuses, others have defied the provisions as shown above. V BETRAYING HUMAN RIGHTS

As posited by Amy Nethery and Rosa Holman, ‘there is substantial and incontrovertible evidence that the human rights outcomes of Australia’s offshore detention centres are devastating’.38 Those documented consequences include severe mental health issues, loss of childhood, lack of capacity for control over one’s life and the compounding of trauma arising from flight and journey. The questions that these

34. John-Paul Sanggaran, ‘Australian Doctors Should Boycott Working in Detention Centres’, The Age (online), 19 February 2016 <http://www.smh.com.au/comment/ health-care-workers-want-more-than-strong-words-about-asylumseeker-treatment20160218-gmx9ku.html>. 35. Australian Border Force Act 2015 (Cth). 36. Ibid s 42; Michael Bradley, ‘Border Force Act: Why Do We Need These Laws’, ABC News: The Drum (online), 16 July 2015 <http://www.abc.net.au/news/2015-07-16/ bradley-border-force-act:-why-do-we-need-these-laws/6623376>. 37. Greg Barns and George Newhouse, ‘Border Force Act: Detention Secrecy Just Got Worse’, The Drum (online), 28 May 2015 <http://www.abc.net.au/news/2015-05-28/ barns-newhouse-detention-centre-secrecy-just-got-even-worse/6501086>. 38. Amy Nethery and Rosa Holman, ‘Secrecy and Human Rights Abuse in Australia’s Offshore Immigration Detention Centres’ (2016) 20 The International Journal of Human Rights 1018, 1032.

Resisting Silence Linda Briskman

conditions confront extend beyond prescribed international conventions to morality and collusion. A range of agencies and individuals collaborate in inflicting harm, including those professing to espouse humanitarian aims, such as participating NGOs and their employees. Australia portrays itself as a human rights–respecting nation. It argues that it is one of the most generous refugee hosting nations in the world. Reality rebuts this claim.39 According to the United Nations High Commissioner for Refugees, the most generous nations in the world include Turkey, Pakistan, Lebanon, Iran and Jordan.40 As a regular visitor to Iran, I am overwhelmed by how it hosts around 3 million Afghans41 without the hysteria that is generated by a relatively small number of asylum seekers in Australia. VI WAYS FORWARD

Whistleblowing is a discredited endeavour but we can turn this around to make it heroic. We can express outrage at what is being done in our name. Stéphane Hessel’s quote at the beginning of this article is a call to action by people of conscience. We can take inspiration from the outspoken, particularly those who are prepared to defy conditions imposed upon them in order to place morality above immoral politics. Stopping the catastrophe of human harm is in human hands. To achieve this we first need strong counter-narratives against current assertions about asylum seekers, in order to challenge policies that reinforce such assertions. From this, direct challenges can be advanced, particularly by those who have witnessed human wrongs and are prepared to take risks for the sake of humanity.

39. Geraldine Chua, ‘FactCheck: Does Australia Take More Refugees Per Capita through the UNHCR than Any Other Country?’, International Business Times (online), 9 September 2015 <http://theconversation.com/factcheck-does-australia-take-more-refugeesper-capita-through-the-unhcr-than-any-other-country-47151>. 40. June Samo, ‘10 Countries That Accept the Most Refugees’, Borgen Magazine (online), 22 January 2016 <http://www.borgenmagazine. com/10-countries-that-accept-refugees/>. 41. Laura Bisaillon, Ehsan Shamsi Gooshki and Linda Briskman, ‘Medico-Legal Borders and the Shaping of Health Services for Afghans in Iran: Physical, Social, Bureaucratic, and Public Health Conditions of Care’ (2016) 2 International Journal of Migration and Border Studies 40, 42.

Minister Dutton’s Children: Guardianship of Unaccompanied Minors in Immigration Detention

Court of Conscience

I INTRODUCTION

Currently, under the Immigration (Guardianship of Children) Act 1946 (Cth) (‘IGOC Act’), the Minister for Immigration and Border Protection (‘the Minister’) is the legal guardian of all unaccompanied minors in immigration detention.1 The Minister is also responsible for the administration of Australia’s detention scheme and detention centres. This presents an irreconcilable conflict of duties between acting in the best interests of unaccompanied minors, as their guardian, and making decisions relating to the detention of the same minors under the Migration Act 1958 (Cth) (‘Migration Act’). As a result of this fundamental conflict of duties, the Minister simultaneously acts as guardian and detainer, carer and imprisoner, of unaccompanied minors in immigration detention. The legal guardianship of unaccompanied minors extends to minors living in community detention and held detention in Australia and Nauru. More specifically, the status of the Minister as legal guardian creates a significant challenge for unaccompanied minors wishing to bring legal proceedings, such as applying for a visa or partaking in proceedings at the Refugee Review Tribunal (‘the Tribunal’). This is because a legal guardian is expected to provide independent legal advice for the minor.2 However, review proceedings are often brought against the decisions of the Minister and his department. The inadequacy of legal advice and resources that the Minister provides effectively silences unaccompanied minors wishing to bring proceedings against their guardian and his delegates. It is therefore pertinent to ask how we can best give voice to unaccompanied minors in legal proceedings under the current model of legal guardianship. This article seeks to henceforth answer that question. Part II will set out the current legal obligations of the Minister as guardian of unaccompanied minors in immigration detention. Part III will examine the rights and access to legal recourse that unaccompanied minors are currently provided, as well as challenges that arise. Finally, Part IV will seek to explore what can be done to remedy this legislative failure.

Natasha Naidu*

Third year Arts/Law student, University of New South Wales. With thanks to the team at the National Children’s and Youth Law Centre for supporting my interest in children’s rights and for the invaluable work they do for children nationally. 1. IGOC Act s 6. 2. Bennett v Minister for Community Welfare (1992) 176 CLR 408.

Court of Conscience

Minister Dutton’s Children Natasha Naidu

II OBLIGATIONS OF THE MINISTER AS GUARDIAN

The duty of a guardian encompasses a non-delegable duty to act with loyalty and good faith, and to pursue the best interests of the minor at all times.3 This best interest duty is enshrined in the United Nations Convention on the Rights of the Child.4 The High Court has held that stemming from the Minister’s general duty to care for the welfare of the unaccompanied minor, there also exists a duty to take steps to obtain independent legal advice for the minor.5 Additional guardianship duties include the duty to protect the child from harm, provide education and offer emotional support.6 However, under the Migration Act the Minister is required to make decisions regarding the detention of unaccompanied minors. The tension between these two duties is illustrated in the process of an unaccompanied minor asking for an internal review of a visa refusal decision. While the Minister, as guardian, has an obligation to act in the interests of the minor by reconsidering the application, the Minister as Migration Act administrator has an interest in resisting challenges to his previous decision.7 It is worth noting that this conflict in duties arises somewhat unintentionally. The IGOC Act originally assigned legal guardianship to the Minister for administrative purposes in the process of adoption of overseas children. No conflict of duties arises in this process.8 As such, the IGOC Act did not assign legal guardianship with a view to changing politico-legal conditions in Australia, nor did it envisage situations where a conflict may arise.9

3. Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1, 33 [124]; The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1. See also National Children’s and Youth Law Centre, ‘Guardianship and Independent Legal Representation for Unaccompanied Minors Seeking Asylum in Australia - Avoiding a Conflict of Interests’ (Draft Discussion Paper, National Children’s and Youth Law Centre, November 2012) 1. 4. Opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990) art 3. 5. Bennett v Minister for Community Welfare (1992) 176 CLR 408. 6. Julie Taylor, ‘Guardianship of Child Asylum-Seekers’ (2006) 34 Federal Law Review 185, 190. 7. Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29, 47 [90]–[91] (The Court) (‘Odhiambo’). 8. Mary Crock and Mary Anne Kenny, ‘Rethinking the Guardianship of Refugee Children after the Malaysian Solution’ (2012) 34 Sydney Law Review 437, 447. 9. Ibid 448.

III UNACCOMPANIED MINORS AND LEGAL PROCESSES

This Part will explore the legal processes involved in applying for a visa and partaking in a tribunal review. It will seek to establish the challenges faced by an unaccompanied minor as a result of the Minister’s position as his or her guardian. Section 5AAA(4) of the Migration Act explicitly sets out that the Minister is not obliged to specify or establish a non-citizen’s protection claim in Australia.10 While it is unclear whether this provision applies equally to minors, the section cannot allow the Minister to ‘legislate out’ of his guardianship duty to provide independent legal assistance to unaccompanied minors. A Applying for a Visa

In order for a child to apply for a visa independently, without a guardian, the child must be considered competent in the Gillick sense. This involves weighing up factors of capacity, age, maturity and understanding.11 However, the Migration Regulations 1994 (Cth) requires a guardian to sign the visa application form on behalf of an applicant if they are under 18 years old.12 The question of whether a minor can sign the form without a guardian was considered in Minister for Immigration and Multicultural and Indigenous Affairs v WAIK.13 However, the question was left unresolved except to comment that even if it was an invalid application because it was signed by a minor, this did not mean the decision of the Tribunal to undertake review was a jurisdictional error.14 As Taylor argues, a visa application is an important and complex legal document.15 A minor in this situation should be allowed to receive independent as10. Migration Act s 5AAA(4). 11. Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112. Gillick competency was incorporated into Australian law in Secretary, Department of Health and Community Services (NT) v JWB (1992) 175 CLR 218 (‘Marion’s Case’). 12. Migration Regulations 1994 (Cth) reg 2.07(3) requires an applicant to complete an ‘approved form’ in compliance with directions on it. Form 688, the ‘approved form’ to apply for protection (class XA) visas, requires a guardian to sign if the applicant is under 18. See Minister for Immigration and Multicultural and Indigenous Affairs v WAIK [2003] FCAFC 307, 6–8 [20]–[25] (The Court). 13. [2003] FCAFC 307. 14. Minister for Immigration and Multicultural and Indigenous Affairs v WAIK [2003] FCAFC 307, 6–9 [19]–[31] (The Court). 15. Taylor, above n 6.

Court of Conscience

Minister Dutton’s Children Natasha Naidu

sistance from someone appointed by the Minister regarding the application.16 Accordingly, there is great need for clear and consistent statutory regulation of the processes involved in an unaccompanied minor applying for a protection visa independently. B Partaking in a Review

The Migration Act does not require a next friend, tutor or guardian to assist in a review hearing.17 The Federal Court decisions of X v Minister for Immigration and Multicultural Affairs18 and Odhiambo19 have reinforced this, creating a situation whereby an unaccompanied minor can be alone in navigating the review system. In X, North J expressly stated that the Minister was responsible for ensuring that minors are given a direct voice to put forward their claims against the denial of rights in administrative and legal proceedings.20 However, North J concluded that this responsibility did not enliven any specific obligation to be proactive in legal representation, such as providing a tutor.21 The Odhiambo decision confirmed that merely being a child does not entitle an unaccompanied minor to the presence of a guardian at the hearing. However, the Court indicated that if the minor was ‘so disadvantaged, by tender years or mental disability’22 the hearing may be adjourned or postponed until legal assistance is available. In this particular case, the Court did not deem assistance necessary because it was found that the applicants were able to have proper regard for their own best interests.23 The Court attributed this ability to the applicants because, although they were under 18 years of age, they had lived independently for a number of years and had been provided a translator for the hearing.24

16. Ibid 196. 17. Migration Act s 425(1) only requires the Tribunal to ‘invite the applicant to appear before the Tribunal to give evidence and present arguments.’ In Odhiambo (2002) 122 FCR 29, 49 [101], the Federal Court construed this provision as referring only to the applicant themselves. 18. (1999) 92 FCR 524 (‘X’). 19. (2002) 122 FCR 29. 20. X (1999) 92 FCR 524, 537–8 [41], [43]. 21. Ibid 537–8 [43]. 22. Odhiambo (2002) 122 FCR 29, 48 [94]. 23. Ibid. 24. Ibid.

Court of Conscience

Minister Dutton’s Children Natasha Naidu

In these cases and the cases that followed,25 the courts have confirmed that the IGOC Act does not enliven a duty of the Minister to inform unaccompanied minors of their legal entitlements. The detrimental impact of this was illustrated in Jaffari v Minister for Immigration and Multicultural Affairs.26 Jaffari was either not informed, or did not understand, that he had 28 days to seek judicial review after being refused a protection visa in the Tribunal. That Jaffari had lost his right to judicial review due to not being informed, or not understanding, was viewed by French J to be ‘of concern’ and ‘a pressing, current issue’.27 The cases reveal a lack of consistency and support for unaccompanied minors, which could be remedied by appointment of a guardian that is not restrained by a conflict of duties. IV REMEDYING THE CURRENT POSITION A Legal Representation

Utilising similar networks would be of great assistance in providing independent legal advisors for unaccompanied minors. B Removing the Minister as Guardian

Of course, the issue of legal representation of unaccompanied minors speaks to the wider problematic framework of legal guardianship of minors in immigration detention. In order to adequately address the root of the problem, it is pressing that the Minister be removed as guardian and replaced by an Independent Legal Guardian. This was proposed in the Guardian for Unaccompanied Children Bill30 that was introduced to the Senate by Senator Sarah Hanson-Young. The Bill was subsequently referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry. However, the Committee’s February 2015 report concluded that any conflict between the Minister’s duties was merely ‘perceived’ and not an actual conflict.31 No subsequent action has been taken.

In order to address the specific challenges of legal representation facing unaccompanied minors due to the current guardianship arrangement, the author recommends the introduction of a policy requiring independent legal advisors for all unaccompanied minors wishing to apply for protection visas or engage in review proceedings. The assistance should be independent, in order to avoid a conflict of duties with the Minister. In line with French J’s suggestion in Jaffari, assistance should be provided up to, and throughout the process of, judicial review.28 In arranging independent legal advisors, the author suggests utilising pro-bono legal networks such as the Unaccompanied Humanitarian Minor Consortium (‘the Consortium’). The Consortium is a network of non-government organisations, community legal centres, JusticeConnect and private law firms which work in collaboration to run High Court challenges for the family reunification rights of Afghan child refugees.29 The Consortium is successful because it engages diverse pro bono programs, allowing for increased resources and innovative ideas.

As has been illustrated above, the position of the Minister as guardian and detainer, carer and imprisoner, under the IGOC Act fundamentally fails to meet guardianship requirements to care for the welfare and best interests of unaccompanied minors in immigration detention. This is especially problematic in regards to legal proceedings brought by unaccompanied minors, where the lack of legal representation provided by the Minister fails to give minors a voice. In particular, minors may be prevented from applying for visas, or be forced to navigate the tribunal system independently. It is therefore clear that the provision of independent legal advisors is essential in order to empower unaccompanied minors in the legal process. Above all, however, it is highly desirable that the Minister be removed as the guardian of unaccompanied minors in immigration detention and replaced by an Independent Legal Guardian.

25. See, eg, WACA v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 463. 26. (2001) 113 FCR 524 (‘Jaffari’). 27. Ibid 539 [44]. See also Crock and Kenny, above n 8, 437. 28. Jaffari (2001) 113 FCR 524, 539 [44]. 29. JusticeConnect, Unaccompanied Humanitarian Minor Consortium wins Children’s Law Award (9 September 2014) <https://www.justiceconnect.org.au/ unaccompanied-humanitarian-minor-consortium-wins-childrens-law-award>.

30. Guardian for Unaccompanied Children Bill 2014 (Cth). 31. Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Guardian for Unaccompanied Children Bill 2014 (2015).

V CONCLUSION

Justice Investment and Community Intervention

Court of Conscience

I INTRODUCTION

The recent release of the Australian Red Cross 2016 ‘Vulnerability Report: Rethinking Justice’ (‘Red Cross Report’) has once again put the spotlight on ‘justice reinvestment’ as a preferred criminal justice orientation and on the special plight and massive over-representation of Indigenous people in Australian prisons.1 Among its recommendations the report emphasises the importance of community buy-in and engagement with justice reinvestment projects and programs. We have heard such emphases and recommendations before – most notably in regards to tackling child abuse within Indigenous communities, especially in the Northern Territory. This article considers how ‘community’ is constructed in research and progressive policy pronouncements (generally in terms of participation and empowerment) and how this contrasts with political debate and legislative measures that position ‘community’ in diametrically opposite ways (as itself the source of the problem yet also warranting a social control response). How investment and intervention are manifested in practice is fundamentally shaped by how community interests are construed. This can work for or against specific communities.

II THINKING ABOUT COMMUNIT Y

The term ‘community’ is used in different ways, leading commentators many years ago to refer to it as the ‘spray-on solution’, one that can suit both conservative and progressive purposes.2 Among other things, it is used descriptively to identify and compare different groups on the basis of geography (people living in the same area), power structures (federal, state and local level), services (transport line or school provision) and social identification (Indigeneity, ethnicity). Social inequality is especially evident in regards to Indigenous communities as compared to non-Indigenous communities, across a wide range of economic, health, welfare and social indicators.3 Yet, ‘community’ can make reference to * 1.

Rob White*

Professor of Criminology, School of Social Sciences, University of Tasmania, Australia. Australian Red Cross, ‘Vulnerability Report: Rethinking Justice’ (Report, Australian Red Cross, 2016) 5. 2. Lois Bryson and Martin Mowbray, ‘“Community”: The Spray-on Solution’ (1981) 16 Australian Journal of Social Issues 255. 3. Department of the Prime Minister and Cabinet, ‘Closing the Gap: Prime Minister’s Report 2016’ (Report, Department of the Prime Minister and Cabinet, 10 February 2016).

Justice Investment and Community Intervention Rob White

unity and inclusion (we all share the same basic values) in the very same moment that it connotes division and exclusion (some people live and act differently to others). In a criminal justice context, the relationship between community and police incorporates several dimensions that are relevant to later observations in this article:

• Policing in the community – the extent to which police are present within a broad range of social institutions and settings, such as schools and at the neighbourhood level; • Policing of the community – the particular task orientation(s) prioritised by police departments; • Policing by the community – the degree to which the community (including the media and other governmental departments) participates in the policing process; and • Policing for the community – the degree to which particular community interests are represented and responded to by police.4 Who is policing whom, and why, is central to these distinctions. These questions are also at the heart of the present discussion, as elaborated below. III COMMUNIT Y AS THE ANSWER

The Red Cross Report views ‘community’ favourably and as part of the answer to ongoing criminality.5 It recommends the use of prisons as a last resort, drastically reducing the number of people sent to prison, and using the financial savings from this for community development in precisely those neighbourhoods and communities that are the source of most of those ending up in our prisons. The notion of justice reinvestment captures this dynamic. In other words, stop spending so much on expensive facets of criminal justice, that tend to do more damage than good, and start spending more on prevention and rehabilitation. Instead of building prisons, the focus is on rebuilding communities. Instead of bricks and mortar, attention is given to people and communities. Most

4. Chris Cunneen and Rob White, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, 1st ed, 1995) 212. 5. Red Cross Report, above n 1.

Court of Conscience

prisoners return to the same communities of which they were originally a part. Bolstering job prospects, providing quality support services, ensuring that people have a roof over their heads, engaging locals in positive community activities – these are the kinds of things that justice reinvestment suggests we spend money on. Indigenous people, young and old, male and female, are heavily over-represented in Australian criminal justice systems, particularly in the harshest points of these systems such as prisons and youth detention centres.6 Unsurprisingly, justice reinvestment appears as an attractive alternative to the present status quo. It is interpreted by proponents as an essentially community-centred approach that offers hope for diminishing the number of Indigenous people entrenched within the criminal justice system.7 Among its key elements are the diversion of funds from prisons to community programs, services and activities that are aimed at addressing the underlying causes of crime in specific communities, enhanced opportunities for community involvement and ownership of the solutions, and provision for offenders to be accountable directly to their community.8 In Australia, the favoured justice reinvestment model is based on the idea of redirecting money from prisons and youth detention centres to communities that feed directly into the prisons, rather than redirect money from prisons to individuals needing drug rehabilitation and who are nonviolent (as in some American projects).9 Preliminary analysis has been undertaken of areas that detainees come from and how best to redirect funds back into those communities.10 Rather than a general pan6. Chris Cunneen et al, Penal Culture and Hyperincarceration: The Revival of the Prison (Ashgate, 2013); Rob White, ‘Indigenous Young People and Hyperincarceration in Australia’ (2015) 15 Youth Justice 256. 7. David Brown et al, Justice Reinvestment: Winding Back Imprisonment (Palgrave Macmillan, 2016). 8. Mick Gooda, ‘Justice Reinvestment: A New Strategy to Address Family Violence’ (Speech delivered at the National Family Violence Prevention Forum AIATSIS and CDFVR, Mackay Queensland, 19 May 2010). 9. Nancy LaVigne et al, ‘Justice Reinvestment Initiative State Assessment Report’ (Report, Urban Institute and Bureau of Justice Assistance, US Department of Justice, January 2014). 10. See, eg, Gooda, above n 8; Troy Allard, April Chrzanowski and Anna Stewart, ‘Targeting Crime Preventing: Identifying Communities that Generate Chronic and Costly Offenders’ (Research and Public Policy Series No 123, Australian Institute of Criminology, July 2013); Jacqueline McKenzie, ‘Insights from the Coalface: The Value of Justice Reinvestment for Young Australians’ (Report, Australian Youth Affairs Coalition, 2013).

Justice Investment and Community Intervention Rob White

acea or response to mass incarceration, as in the United States, justice reinvestment is seen in Australia to be most relevant to select groups – in particular, the over-representation rates of Indigenous people continue to be untenable. In light of this, justice reinvestment approaches have garnered significant political support within Indigenous communities and advocacy bodies precisely because of the dire nature of the contemporary policies and practices affecting Indigenous people across the country.11 However, by focusing the spotlight on specific communities in this way (that is, in a manner that may portray them primarily as dysfunctional and deviant) the door is open for further stigmatisation of both community and individuals within them, and for coercive ‘outside’ intervention in these same communities. Justice reinvestment as an ideal and concrete practice thus carries with it certain hopes but also potential dangers. In the context of tight government budgets, for instance, while the need for community development is growing rapidly (as indicated by unemployment rates amongst the young), the resources for this are shrinking (due to government priorities). Without dedicated job creation strategies and efforts to improve overall educational outcomes, the success of justice reinvestment seems less than assured, although the benefits may still be felt at the local level in some places and to some extent.12 The issue here is not only about money (how much, and how and where it is spent). It is also about who makes decisions affecting what happens at the local community level. The moral voice of (and for) a community is contestable and is intrinsically interwoven into existing power relations. This reality is highlighted by the Northern Territory intervention, which is ongoing. It is part of the continuing story of the contemporary extension of colonial ideology, policy and practice. IV COMMUNIT Y AS THE PROBLEM

In June 2007, the federal government staged a massive intervention in the Northern Territory ostensibly designed to protect Indigenous children from sexual abuse. The government used the 'Little Children

11. Gooda, above n 8; Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Social Justice Report 2009’ (Report, Australian Human Rights Commission, 2009) 9–56. 12. See Brown et al, above n 7.

Court of Conscience

‘Stop spending so much on expensive facets of criminal justice, that tend to do more damage than good, and start spending more on prevention and rehabilitation. Instead of building prisons, the focus is on rebuilding communities. Instead of bricks and mortar, attention is given to people and communities … these are the kinds of things that justice reinvestment suggests we spend money on.’

Court of Conscience

Justice Investment and Community Intervention Rob White

are Sacred Report' as the justification for both taking action and for the specific sort of action taken.13 Subsequent legislation removed the permit system for access to Indigenous land; abolished government funded Community Development Employment Projects; quarantined 50 per cent of welfare payments; suspended the Racial Discrimination Act 1975 (Cth); expected Indigenous people to lease property to the government in return for basic services; compulsorily acquired Indigenous land; and subjected Indigenous children to mandatory health checks without consulting their parents.14 The measures also included the deployment of additional police to affected communities, new restrictions on alcohol and kava, and the removal of customary law and cultural practice considerations from bail applications and sentencing within criminal proceedings. The justification for such draconian and dramatic legal intervention was child abuse, yet the words ‘child’ or ‘children’ never appear in the actual legislation. As one commentator put it:

This legislation does nothing for children, nothing for Indigenous disadvantage, nothing to actually stop child abuse. It takes control away from Indigenous communities. It allows government bureaucrats to force themselves into our boardrooms. It takes over our land. It takes away our ability to have a say on who can come onto our freehold title land. It places bureaucrats in charge of our lives.15

The net result of the intervention, introduced under the cover of ‘what is best for the community’, has been significant deterioration in the health and wellbeing of the individuals, groups and communities subjected to its laws and policies (as measured by indicators such as 13. Rex Wild and Patricia Anderson, ‘Ampe Akelyernemane Meke Mekarle “Little Children are Sacred”: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse’ (Report, Northern Territory Government, 15 June 2007); see James Roffee, ‘Rhetoric, Aboriginal Australians and the Northern Territory Intervention: A Socio-Legal Investigation into Pre-legislative Argumentation’ (2016) 5 International Journal for Crime, Justice and Social Democracy 131. 14. Northern Territory National Emergency Response Act 2007 (Cth); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth); Families, Community Service and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth). 15. Muriel Bamblett of the Secretariat of Aboriginal and Islander Child Care, quoted in Sarah Maddison, ‘Australia: Indigenous Autonomy Matters’ (2009) 52 Development 483, 485.

suicide rates, school attendance, number of children put into out-ofhome-care, and incarceration rates).16 The type of thinking that underpins the intervention is also evident in recent comments by former Prime Minister Tony Abbott, who declared that in North Queensland 10-year-old sex offenders should be arrested, charged and forced into the juvenile justice system.17 Such statements completely ignore that these ‘offenders’ are simultaneously ‘victims’; that age is a crucial developmental and competency indicator, and therefore children require supportive rather than punitive measures; and that taking the young out of their community, a perennial issue for Indigenous people, is not a solution since it does not deal with issues in the community that produce the problem in the first place. If such advice were followed, it would mirror the punitive and disempowering strategy of the intervention. V AMBIGUITIES PERTAINING TO COMMUNIT Y

Notably, a number of Indigenous leaders nonetheless endorsed or at least partially supported the approach of the intervention.18 However, to understand this, it is essential to once again return to the notion of ‘community’ and how this is interpreted. Specifically, there are a couple of concepts at odds in this instance: • The need to intervene in relation to serious community issues is conflated with the exercise of coercion over everyone within these communities. This is not empowerment of people, but imposition of power over people; and • The consequence of coercive intervention is not to the benefit, but 16. See Jens Korff, Northern Territory Emergency Response (NTER) – ‘The Intervention’ (9 August 2016) Creative Spirits <https://www.creativespirits.info/aboriginalculture/ politics/northern-territory-emergency-response-intervention>; Chris Cunneen and Simone Rowe, ‘Decolonising Indigenous Victimisation’ in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts, Local Experiences (Palgrave Macmillan, 2015). 17. See ‘Tony Abbott reacts to Smallbone report saying 10-year-old sex offenders should be jailed’, The Courier-Mail (online), 21 March 2016 <http://www.couriermail.com. au/news/queensland/tony-abbott-reacts-to-smallbone-report-saying-10yearoldsex-offenders-should-be-jailed/news-story/885a1bc5c7c8942a7b029895866983 5b>. 18. See Maddison, above n 15, 485, 487.

Court of Conscience

Justice Investment and Community Intervention Rob White

the detriment, of these communities. This is not meeting needs, but creating hardships. In part, the problems stem from the original construction of the intervention itself and what was fundamentally ignored – namely, the community. Consider, for example, the very first recommendation of the Little Children are Sacred Report: That Aboriginal child sexual abuse in the Northern Territory be designated as an issue of urgent national significance by both the Australian and Northern Territory Governments, and both governments immediately establish a collaborative partnership with a Memorandum of Understanding to specifically address the protection of Aboriginal children from sexual abuse. It is critical that both governments commit to genuine consultation with Aboriginal people in designing initiatives for Aboriginal communities.19

Indeed, more generally, the recommended ‘rules of engagement’ between Australian governments and Indigenous peoples included a series of important principles.20 • Principle One – Improve government service provision to Aboriginal people • Principle Two – Take language and cultural ‘world view’ seriously • Principle Three – Engage in effective and ongoing consultation and engagement with Aboriginal Communities • Principle Four – Maintain a local focus and recognise diversity • Principle Five – Support community-based and community-owned initiatives • Principle Six – Recognise and respect Aboriginal law, and empower and respect Aboriginal people. • Principle Seven – Maintain balance in gender, family and group representation • Principle Eight – Provide adequate and ongoing support and resources 19. Little Children are Sacred Report, above n 13, 22 (emphasis added). 20. Ibid 50–5 (emphasis added); See also Mick Gooda, ‘Social Justice Report 2007’ (Report No 1/2008, Australian Human Rights Commission, 2007) 203 <social_justice/sj_report/ sjreport07/index.html>.

• Principle Nine – Commit to ongoing monitoring and evaluation of programs The intervention has confounded and contradicted these principles at every turn. The policy has been described as ‘punitive, coercive and racist’ and as the imposition of a set of measures on Indigenous people; as such, it is contrary to the wishes of those who argue that ‘Indigenous disadvantage can only be improved when Indigenous people are given greater control over the decisions that impact on their daily lives’.21 VI CONCLUSION

The rethinking of justice in ways that include endorsements of justice reinvestment (as well as restorative justice, diversion and related concepts) is vital to changing systems that are fundamentally wrong and unjust. The political dynamics underpinning how individuals and communities considered ‘at risk’ are transformed into those considered ‘as risk’, however, requires sensitivity to nuance and vigilance against imposition. Positioning communities as the problem simultaneously involves disavowal of historic and intergenerational effects of colonialism, and the diminution of their rights. Justice reinvestment offers the promise of constructive, positive building of community capacity. Yet, in practice, depending upon how it is conceptualised and implemented, it could be interpreted as licence to increase social control over already vulnerable communities (that is, policing of the community). As with any state intervention, context and the actual content of the intervention provides the marker of whether or not justice is achieved or further injustice committed.

21. Aden Ridgeway, ‘Mabo Ten Years On – Small Step or Giant Leap’ in Hannah McGlade (ed), Treaty: Let’s Get It Right! (Aboriginal Studies Press, 2003) 185, 188.

‘Please Give Us Answers’ Indigenous Incarceration in Australia: Strategies for Urgent Reform

Court of Conscience

‘ My granddaughter died in a cell begging for help. Please give us answers.’ – Carol Roe, grandmother of 22-year-old Yamatji woman, Ms Dhu. Ms Dhu died from septicaemia and pneumonia on 4 August 2014 whilst in police custody. She had been arrested and taken to South Hedland police station, north of Perth, Western Australia, less than two days earlier.1 Her crime was owing $3622 in unpaid fines. A coronial inquest into Ms Dhu’s death was presented with security camera footage of a limp Ms Dhu being dragged along the floor of her cell by police. She was then loaded into the back of a Land Cruiser to be driven to hospital for the third time during the 45 hours she was in custody.2 Shortly before Ms Dhu went into cardiac arrest, a nurse was told by police officers that they believed she ‘was faking it’.3 Ms Dhu died soon after. Coroner Ros Fogliani initially refused a request by Ms Dhu’s family to release the footage.4 Despite police resistance,5 sustained campaigning from the family and a successful motion in the Senate have called for its release.6 *

3. 4.

Nicholas Carey*

In a previous life, Nicholas was a professional classical musician, holding a Bachelor of Music (First Class Honours) from the Sydney Conservatorium of Music and performing regularly with the Australian Opera and Ballet Orchestra. During his first career diversion, Nicholas worked for a number of years as a green coffee buyer and operations manager for a boutique coffee trader, travelling regularly to Ethiopia, Kenya and Brazil to buy and import specialty coffee from some of world’s best producers. He is now a second year Juris Doctor student at the University of New South Wales. A previous version of this article was published as a blog post on the Amnesty International’s NSW Legal Network website. Calla Wahlquist, ‘Ms Dhu Death in Custody Inquest Hears Details of the Last 48 Hours of Her Life’, Guardian Australia (online), 23 November 2015 <http://www.theguardian.com/australia-news/2015/nov/23/ ms-dhu-death-in-custody-inquest-hears-details-of-the-last-48-hours-of-her-life>. Laura Gartry and Rebecca Trigger, ‘Police Thought Dying Aboriginal Woman Ms Dhu was Faking It, Coronial Inquest Told’, ABC News (online), 23 November 2015 <http://www. abc.net.au/news/2015-11-23/inquest-into-death-of-dhu-in-police-custody/6963244>. Ibid. Calla Wahlquist, ‘Coroner Rules Footage of Ms Dhu May Not Be Released, Against Family’s Wishes’, Guardian Australia (online), 25 March 2016 <https://www.theguardian.com/australia-news/2016/mar/25/ coroner-rules-footage-of-ms-dhu-may-not-be-released-against-familys-wishes>. Australian Associated Press, ‘WA Police Chief Karl O’Callaghan Backs Coroner Decision on Ms Dhu Video’, Perth Now (online), 8 September 2016 <http://www.perthnow.com.au/news/western-australia/wa-police-chief-karl-ocallaghan-backs-coroner-decision-on-ms-dhu-video/ news-story/880cfac2e40d41a22ea37f3cceca9088>. Sebastian Neuweiler, ‘Senate Supports Push for Ms Dhu Footage Release’, ABC

‘Please Give Us Answers’ Nicholas Carey

Recently, an application by the Aboriginal Legal Service of Western Australia was successful in obtaining a hearing by Coroner Fogliani to reconsider her decision. The Coroner’s final findings from the inquest are not due to be released until later this year. Ms Dhu is one of about 340 Indigenous people7 who have lost their lives in custody since the handing down of the final report of the Royal Commission into Aboriginal Deaths in Custody (‘Royal Commission’) on 15 April 1991.8 Twenty-five years on from the report, Ms Dhu’s grandmother’s plea must urgently be answered. The Royal Commission’s 339 recommendations were the outcome of its investigation into 99 deaths in custody that occurred between 1980 and 1989, totalling five volumes of research.9 One of its key findings was that Indigenous people were more likely to die in custody because they were more likely to be in custody. With this finding as a foundation, the report was intended to be a working document of change directed at reducing the disproportionate rates of incarceration of Indigenous Australians. However, 25 years on from the Royal Commission’s findings, the rates of imprisonment and police custody have increased substantially. This article sets out some of the data on current rates of Indigenous people in custody in Australia, examines the drivers of why the rates of incarceration are so high, and gives an overview of current recommendations for urgently needed reform. I THE FIGURES

The national rates of contact by Indigenous people with Australia’s criminal justice system, including their over-representation in custody,

News (online), 31 August 2016 <http://www.abc.net.au/news/2016-08-31/ senate-supports-push-for-ms-dhu-footage-release/7803382>. 7. Calla Wahlquist, ‘Aboriginal Deaths in Custody: 25 Years On, the Vicious Cycle Remains’, Guardian Australia (online), 15 April 2016 <http://www.theguardian.com/australia-news/2016/apr/15/ aboriginal-deaths-in-custody-25-years-on-the-vicious-cycle-remains>. 8. Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991). 9. Thalia Anthony, ‘Deaths in Custody: 25 Years after the Royal Commission, We’ve Gone Backwards’, The Conversation (online), 13 April 2016 <https://theconversation. com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109>.

Court of Conscience

are staggering. As Chris Cunneen, Professor of Criminology at the University of New South Wales, notes: Put bluntly, the last 25 years have seen a spectacle of punishment most graphically illustrated in climbing imprisonment rates. And these changes were directly in opposition to the fundamental findings of the royal commission … prisons have become human warehouses for marginalised peoples, and most particularly Indigenous people.10

A recent discussion paper published as part of the Law Council of Australia November 2015 symposium Addressing Indigenous Imprisonment11 collated data sets from the Australian Bureau of Statistics, government committee reports, and a number of leading academic papers on the current rates of Indigenous incarceration and disadvantage. The Law Council reported that: • One in four deaths in custody is Indigenous; • Twenty-seven per cent of the prison population is Indigenous, while comprising just 2.5 per cent of the national census; • Indigenous youths comprise over 50 per cent of juveniles in detention; • The rate of imprisonment of Aboriginal people has increased by over 57 per cent since the year 2000; • Aboriginal and Torres Strait Islander women are the fastest growing cohort of people who are both victimised and imprisoned for violent offences (with Indigenous men not far behind); and • The overall crime rate in Australia has fallen substantially over the last 20 years, over a period in which the rate of imprisonment for the general population increased and the rate of Indigenous incarceration doubled.12

10. Chris Cunneen, ‘How “Tough on Crime” Politics Flouts Deathin-Custody Recommendations’, The Conversation (online), 14 April 2016 <https://theconversation.com/ how-tough-on-crime-politics-flouts-death-in-custody-recommendations-57491>. 11. Law Council of Australia, ‘Addressing Indigenous Imprisonment’ (Discussion Paper presented at National Symposium, Law Council of Australia, November 2015) <http://www. lawcouncil.asn.au/lawcouncil/images/II_Discussion_Paper_23_11.pdf>. 12. Ibid 9.

‘Please Give Us Answers’ Nicholas Carey

More recently, the imprisonment rate for Indigenous adults, recorded between June 2013 and June 2014, increased by 6.5 per cent.13 As at June 2015, the national Indigenous imprisonment rate is 13 times higher than it is for non-Indigenous Australians. These rates are higher in both Western Australia (17 times higher)14 and the Northern Territory (14 times higher).15 Extraordinarily, prisoner numbers among Aboriginal and Torres Strait Islander peoples since 2004 have grown by 88 per cent. This is compared with the non-Indigenous prisoner growth of 28 per cent.16 II THE DRIVERS

Critical to an understanding of the rates of incarceration of Indigenous people is to acknowledge the ongoing effects of colonisation. The Royal Commission noted the crucial relevance that an examination of Australia’s colonial history has to forming an understanding of Aboriginal experience:

The ignorance of history and of the reason for present Aboriginal disadvantage which non-Aboriginal people have held for so long helps to explain why it is that so many Aboriginal people are angry and bitter in their relations with non-Aboriginal society.17

This history is the underlying cause of the high levels of disadvantage experienced by Indigenous people today. Twenty-five years on from the Royal Commission, this disadvantage is still manifesting in high rates of Indigenous contact with the criminal justice system, community dysfunction, disability, and drug and alcohol abuse. Crucially, a lack of alternatives to imprisonment, particularly in rural and remote areas where many Indigenous people live, is commonplace.18 13. Australian Red Cross, ‘Rethinking Justice: Vulnerability Report 2016’ (Research Report, Australian Red Cross, March 2016) 16 <http://www.redcross.org.au/files/ VulnerabilityReport2016.pdf> (‘Red Cross Report’). 14. Australian Bureau of Statistics, Prisoners in Australia (2015) <http://www.abs. gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2015~Main%20 Features~Western%20Australia~24>. 15. Ibid. 16. Red Cross Report, above n 13, 16. 17. Royal Commission, above n 8, vol 2 [10.1.8]. 18. Law Council of Australia, above n 11, 12.

Court of Conscience

National crime rates are not correlated with the increase in the incarceration of Indigenous people. As noted by the Law Council of Australia, these rates have actually fallen over the past 20 years whilst imprisonment has risen. Instead, it is the confluence of Indigenous peoples’ socioeconomic disadvantage with increasingly harsh criminal justice policies that is being attributed by many experts as the true driver of the disparity. As Professor Chris Cunneen puts it: The growth of the law-and-order agenda has … resulted in far weaker ideological differentiation between major political parties on criminal justice policy. The most politically expedient response to crime is the promotion and implementation of the ‘toughest’ approach.19

The Law Council of Australia also notes that policy settings, rather than crime rates, are the significant driving factors influencing increased imprisonment rates, and that law-and-order policies across most jurisdictions are becoming increasingly punitive.20 Mandatory sentencing is one policy setting that has most recently come under significant criticism. The Australian Bar Association (‘ABA’) has called for the amendment or removal of these laws, arguing that state and territory government bail and sentencing policies, especially in jurisdictions where mandatory sentencing laws are in operation, are key contributing factors to the over-representation of Indigenous people in custody.21 In a recent media release on the issue, the ABA president, Patrick O’Sullivan QC, remarked: Mandatory sentencing appears a significantly attractive option to reduce crime and provide consistency in sentencing, however a lack of evidence exists as to the efficacy as a deterrent or the ability to decrease crime, particularly around minor theft, driving offences and minor assault.22

19. Cunneen, above n 10. 20. Law Council of Australia, above n 11, 12. 21. Australian Bar Association, ‘“Amend Mandatory Sentencing and Watch Indigenous Incarceration Rates Fall” Says ABA President’ (Media Release, Australian Bar Association, 8 April 2016) <http://www.austbar.asn.au/wp-content/uploads/2013/12/ MR-ABA-on-Indigenous-Incarcertion-80416.pdf>. 22. Ibid 3.

‘Please Give Us Answers’ Nicholas Carey

Court of Conscience

III THE SOLUTIONS

In November 2015, Change the Record, a national coalition of leading Aboriginal and Torres Strait Islander, human rights, legal and community organisations,23 released its ‘Blueprint for Change’ ('Blueprint').24 The Blueprint made a number of detailed recommendations. Fundamental to the Blueprint were two key targets aimed at promoting community safety and reducing the rates at which Aboriginal and Torres Strait Islander people come into contact with the criminal system. The targets are to: 1. Close the gap in the rates of imprisonment between Aboriginal and Torres Strait Islander people by 2040; and 2. Cut the disproportionate rates of violence against Aboriginal and Torres Strait Islander people to at least close the gap by 2040, with priority strategies for women and children.25

The Australian Red Cross, in its recent Red Cross Report26 published in March 2016, both endorsed this Blueprint and presented detailed research and recommendations on the implementation of a justice reinvestment strategy in Australia. Justice reinvestment is an innovative approach to criminal justice reform that has gained significant support across many sectors recently, after successful trials of the approach internationally. Justice reinvestment is a mechanism that is designed to redirect money away from incarceration and towards community-based initiatives aimed at addressing the underlying causes of crime. Implementing the approach is also aimed at yielding ‘a more cost beneficial impact on public safety’.27 The approach’s employment of community-based crime prevention strategies has been canvassed as an effective means of reducing the number of people who come into contact with the criminal

23. A list of the individuals and organisations comprising the Change the Record coalition’s Steering Committee is available on the coalition’s website: Change the Record, Steering Committee (2015) <https://changetherecord.org.au/about>. 24. Change the Record, ‘Blueprint for Change’ (Research Report, Change the Record, November 2015) <https://drive.google.com/file/d/0B3OlOcaEOuaFU3BNc3Zrbl9wa0U/ view?pref=2&pli=1>. 25. Ibid 5. 26. Red Cross Report, above n 13. 27. Ibid 18.

‘Please Give Us Answers’ Nicholas Carey

justice system to begin with.28 Furthermore, strengthening communities is said to not only result in a reduction of anti-social behaviour and recidivism, but also encourages the use of alternatives to imprisonment when courts impose sentences.29 The Red Cross Report argues that the key to the success of justice reinvestment has been that the approach involves local stakeholders, collaborating across their own communities to identify the drivers of the costs of the criminal justice system. It then implements novel and more effective ways of reinvesting resources to achieve better outcomes by focusing on the causes of crime.30 Recently, in advocating for the implementation of the strategy in Australia, the ABA has pointed to positive outcomes in other jurisdictions, noting that ‘Oregon (US) experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services’.31 The Australian Human Rights Commission has also endorsed the approach in its submission to Australia’s Universal Periodic Review, recommending that Australia ‘adopt targets and introduce justice reinvestment trials to reduce Indigenous incarceration rates’.32 Australia’s former Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, in endorsing the strategy, said ‘[w]hat I like about Justice Reinvestment is that it provides opportunities for communities to take back local control … to not only take some ownership of the problem but also to own the solutions.’33 Community-based trials of justice reinvestment are currently underway in the towns of Cowra in central-west New South Wales, and in Bourke in north-west New South Wales. The Cowra research project is being led by the Australian National University’s National Centre for Indigenous Studies, in coordination with a range of Indigenous commu28. Melanie Schwartz, ‘Building Communities, Not Prisons: Justice Reinvestment and Indigenous Over-Imprisonment’ (2010) 14(1) Australian Indigenous Law Review 1, 7. 29. Ibid 10. 30. Ibid 4. 31. Australian Bar Association, above n 21, 2. 32. Australian Human Rights Commission, ‘Australia’s Second Universal Periodic Review: Submission by the Australian Human Rights Commission under the Universal Periodic Review Process’, April 2015, 10. 33. Mick Gooda, ‘Justice Reinvestment: A New Strategy to Address Family Violence’ (Speech delivered at the National Family Violence Prevention Forum AIATSIS and CDFVR, Mackay Queensland, 19 May 2010).

Court of Conscience

nity representatives, legal experts and academics.34 The Bourke justice reinvestment project is a combined project between Just Reinvest NSW, the Bourke Aboriginal Community Working Party and the Australian Human Rights Commission.35 Both projects have been in preparatory stages of development for the past three years, with the Bourke project having begun its implementation phase in June this year.36 A thorough examination of the impact of these site-specific trials is some way away, however the planning and consultation phases themselves have been regarded as being ‘a process of social change’, with specific initiatives such as driver licensing, fine and police bail arrangement matters already making an impact.37 Any examination of the effectiveness of justice reinvestment at the national level, however, is not possible without its wholesale adoption and implementation. In order to achieve this, a significant shift in the direction of government policy across all jurisdictions towards a more holistic and preventative approach to justice reform must be made. Unfortunately, the prevailing ‘tough-on-crime’ ideology seemingly persists at the federal level, despite a steadily growing body of research disputing its basis. In response to the release of the Red Cross Report, Federal Justice Minister, Michael Keenan stated: Taking criminals off the streets is an important part of what we do to protect people from crime … I would never suggest making an investment in some sort of amorphous set of social infrastructure would result in a decrease in crime.38 34. National Centre for Indigenous Studies, Reducing Incarceration Using Justice Reinvestment: An Exploratory Case Study (12 July 2016) Australian National University <http://ncis.anu.edu.au/cowra/>. 35. Just Reinvest NSW, Justice Reinvestment in Bourke <http://www.justreinvest.org.au/ justice-reinvestment-in-bourke/>. 36. Ibid. 37. Bob Debus, ‘The Second Frank Walker Memorial Lecture “The Things That Must Be Done…” Some Genuine Decision-Making Power: Dealing with the Over-representation of Aboriginal People in the Prison System’ (Speech delivered at the New South Wales Society of Labor Lawyers, Sydney, 16 February 2016) <https://d3n8a8pro7vhmx.cloudfront.net/nswlaborlawyers/pages/85/attachments/original/1455791344/Frank_Walker_ Memorial_Lecture_2016.pdf?1455791344>. 38. Sam Tomlin, ‘Locking Bad People Up “Works”: Minister for Justice Rejects Calls for Prison Overhaul’, ABC News (online), 31 March 2016 <http://www.abc.net.au/news/2016-03-31/ federal-justice-minister-rejects-prison-criticism/7289038?section=wa>.

‘Please Give Us Answers’ Nicholas Carey

Despite this lack of political appetite for change, calls for practical short and long-term solutions for justice reform have come from many quarters, including the judiciary. In an address to the Western Australia Law Summer School in February of 2015, the Hon Wayne Martin AC, Chief Justice of Western Australia, outlined some responses that he believes are needed.39 Chief Justice Martin outlined as short-term responses: reforms to driving offences, fine default offences, mandatory sentencing, and cautiously criticised the cuts to Legal Aid funding. For the longer term, Chief Justice Martin noted that: the only real solution, which is necessarily long term, is to address disadvantage and marginalisation in the longer term … if resources are reduced in what I might call the prevention side, then we will be spending additional resources in our prisons. Why not spend the money on prevention rather than punishment?40 IV CONCLUSION

The rates of Indigenous contact with the criminal justice system are alarmingly high, and increasing. Current policy settings are not working. In the 25 years since the findings of the Royal Commission, Australia’s Indigenous peoples have been locked up at higher and higher rates, infringing Australia’s international obligations to respect and preserve human rights, and the specific rights of Indigenous peoples. The drivers are clear – an increasingly punitive law-and-order policy landscape, at a time of falling crime rates has collided with the significant socio-economic disadvantage of our Indigenous population to cause increasing racial disparity, and still more deaths in custody. The solutions are within reach, and are needed urgently to ensure that no more Indigenous Australians die on our watch. Carol Roe needs our answers – now.

39. Chief Justice Wayne Martin, ‘Indigenous Incarceration Rates: Strategies for Much Needed Reform’ (Speech delivered at the Western Australia Law Summer School, 20 February 2015) <http://www.supremecourt.wa.gov.au/_files/Speeches_Indigenous_ Incarceration_Rates.pdf>. 40. Ibid 17–18.

Justice or Just Us?

Court of Conscience

In the USA, I’m seven times more likely, as a Black or Hispanic, to be harassed, arrested and incarcerated, than the average American.1 In Australia, that figure jumps to thirteen times more likely as an Indigenous Australian, you do the math.2 This tells me in no uncertain terms, that not only is the justice system in Australia shamefully racist, but it’s also badly in need of overhaul.1 Recently, NSW Premier, Mike Baird, announced the need for 7000 new cells (cells not gaols) at a cost of $3.8 billion.3 Baird is smooth and presents well on television. But how can he seriously announce the need for more prison space at a cost of $540 000 per cell? I could buy a house in many parts of Australia for much less. Professor Michael Marmot, who along with Professor Tony Vinson, devised what’s known as social determinants, urges society to look at the postcodes which supply the most prisoners and to then set to work fixing these places.4 Mount Druitt in Sydney’s West, Elizabeth in North Adelaide, even Orange’s Glenroi or Dubbo’s Apollo Estate would qualify. In these places, which have been allowed over time to run down, educational levels are poor, unemployment and welfare dependency are high and the issues of violence and substance abuse are all pervasive. The great unknown in these places is often the level(s) of mental illness in the estates. If you are an ice addict, you need rehab and healing, not prison. If you suffer from a mental illness then you need real help in a suitable facility rather than incarceration. In the USA, of the 5200 prisons, almost one in 10 prisoners are housed in private facilities.5 There has been a move in recent times however, to reverse that trend. Americans are realising a privatised prison system just doesn’t work.6 When will Australia slavishly follow suit? In Australia, we outsource to multinationals to run many of our gaols. The same applies with Villawood, Manus Island and Nauru. This, in my opinion, absolves government of accountability and of responsibility for human life on their watch. Recently, Rebecca Maher, a 36-year-old Wiradjuri woman was arrested, walking after midnight beside a busy road. Her crime? She was known to police and she appeared to be intoxicated. When police checked Rebecca at 6am the next day, she was dead.7 This happened at

‘Riverbank’ Frank Doolan*

A local Wiradjuri Elder from the Dubbo region. Riverbank Frank, as the name suggests, lives on the riverbank. A founder of the Dubbo Community Men’s Shed. Currently, a community worker at Apollo House in the Apollo Estate. Riverbank Frank, a poet and a philosopher, believes strongly in the need for reconciliation between all Australians.

Justice or Just Us? ‘Riverbank’ Frank Doolan

Maitland in the Hunter Valley, not at some far flung outback outpost. How many of the police present, who dealt with Rebecca that night, were aware of the many recommendations from the Deaths in Custody Royal Commission8 on how best to treat Indigenous prisoners? How many cared? In a country where we spend thousands on anti-domestic violence advertising, where a recent Australian of the Year was domestic violence survivor/advocate, Rosie Batty, and where one woman dies every four days as a result of domestic violence, who will say a prayer for Rebecca Maher? Dead after one night in an Australian police cell. So what is the solution? Is the answer to build even more prisons and to adopt even more punitive measures? In the USA, they are trying out what they call ‘restorative justice’ in which more money is invested in preventative measures rather than prisons.9 It is a much more cost-effective way to counter crime and it is working. To date, nothing else really has. In Australia, the recent ABC Four Corners program, Backing Bourke,10 highlighted a similar initiative being tried in the far western New South Wales town. So far, these measures appear to be working. Crimes involving violence and sexual assault demand incarceration. But what about the many who are incarcerated for minor, petty crimes and at what cost? Community service orders and home detention are much cheaper options than building more prisons. How does this work in Australia? A local parish priest and a team of volunteers provided a blueprint for healing community in Mount Druitt in Sydney’s West in the 1980s through to the 1990s. The Holy Family Centre at Emerton, a Mount Druitt suburb, was a real lighthouse for the poor. A co-op shop was set up selling cheap food and clothing and a real community spirit was nurtured in a tough place at the best of times. Many of the Mount Druitt residents who accessed the Centre also did community service orders at the Holy Family Centre. This usually involved working on jobs on church grounds, gardening etc. When a holiday program was established, offering residents day trips out of Mount Druitt, the priest needed drivers for the buses. He turned to the men doing community service orders at the church. Over time, many of the men trained and gained licences to drive buses. This, in turn, led to them gaining employment with Westbus as drivers. So a scheme intended to punish offenders and to make them repay a debt to society actually ended up making them more employable.

Court of Conscience

‘Customary or traditional law has been described as primitive and barbaric. When I see the way the Australian justice system treats Indigenous offenders in this country, I wonder how primitive, punitive and barbaric Indigenous systems of law are in comparison?’

Justice or Just Us? ‘Riverbank’ Frank Doolan

My only regret is that mostly Islander men, rather than Indigenous Australians, took advantage of this opportunity. That particular priest’s time at Mount Druitt passed and he moved on. The first thing the new mob did was to erect a six-foot fence around the centre. An interesting bunch, the Catholics, a priest with a real social conscience is one in a million. Fact is, however, that this was tried, with real success, decades ago in Australia and as time passed, discarded. Maybe it’s time to revisit the past? In this country, we’ve created industry out of disadvantage, before White arrival, there was not one single prison. There was law and justice, but not gaols! Customary or traditional law has been described as primitive and barbaric. When I see the way the Australian justice system treats Indigenous offenders in this country, I wonder how primitive, punitive and barbaric Indigenous systems of law are in comparison? The recent ABC Four Corners program about juvenile detention is really the tip of the iceberg. The horror stories many Indigenous youth relate to me makes me glad I’m through that stage of my life. To be Indigenous in Australia today, between the ages of 15–25, must feel for many as if they have targets on their chests. Racist police fill in their time doing slow drives through estates in places like Dubbo or Mount Druitt and often stop, harass and publicly humiliate Black kids under the guise of crime prevention. These exchanges between police and Indigenous youth are often racist and are most definitely an attack on human dignity. I’ve observed, over time, how these experiences seem to embitter and in many cases create petty, yet hardened, habitual criminals who are constantly told, as adolescents, by serving police that they are by nature, criminal. Much more needs to be done in the way of diversionary programs. I hope also that somebody in authority will do something to change police culture in this country as far as our kids are concerned. Police need to learn how to treat Indigenous youth with the dignity they afford other Australian youth. Otherwise, my people will continue to provide cannon fodder for the privatised prison system of Australia. We have politicised the justice system in this country. It’s all about management control and a top-down approach and is in reality about political expediency. We must empower communities to carry their

Court of Conscience

wounded, to support community service orders and not to demonise people who, in reality, are guilty of petty crime. Studies reveal that restorative justice programs do work and are much more cost-effective than privatised prisons. What’s needed, however, to make this really work is a dismantling of the top-down approach and greater consultation with and empowerment of communities. Mount Druitt, one of Australia’s biggest public housing estates was planned and implemented by government, as were the other estates. It’s easy now to blame community for the issues facing them but the government must accept some responsibility. When one compares the treatment, by authorities, of former NSW Premier Neville Wran’s daughter with that of Wiradjuri woman, Rebecca Maher, one can only shake the head and smile wryly. Someday, sometime, in this most ancient of lands, the people whose forebears came from other lands will learn how to treat my people with dignity, fairness and (shock horror) maybe even kindness. Until that day arrives, Indigenous Australians will collectively continue to ask: Is it Justice or Just Us? Rebecca Maher, her memory lives.

Justice or Just Us? ‘Riverbank’ Frank Doolan

REFERENCES

N.B. The Court of Conscience Editorial Team has included the following references as suggestions for further research.

1. Heather C West, ‘Prison Inmates at Midyear 2009 – Statistical Tables’ (Statistical Table, US Department of Justice: Bureau of Justice Statistics, June 2010) 21, Table 18 <http:// www.bjs.gov/content/pub/pdf/pim09st.pdf>. 2. Christopher Holland, ‘Progress and Priorities Report 2016’ (Report, Close The Gap Campaign Steering Committee, February 2016) 30. 3. Lucy McNally, ‘NSW budget: $3.8b to fund thousands of extra beds in crowded jails’, ABC News (online), 16 June 2016 <http://www.abc.net.au/news/2016-06-16/nsw-govtto-fund-thousands-extra-beds-to-help-crowded-jails/7515336>; Sean Nicholls, ‘NSW Budget 2016: $3.8 billion for new jail capacity to cover surge in prison population’, The Sydney Morning Herald (online), 16 June 2016 <http://www.smh.com.au/nsw/nswbudget-2016-38-billion-for-new-jail-capacity-to-cover-surge-in-prison-population20160616-gpkhd5.html>. 4. Bill Bush, ‘Addressing the drivers of poverty’, The Sydney Morning Herald (online), 13 October 2015 <http://www.smh.com.au/comment/addressing-the-drivers-of-poverty20151013-gk86lw.html>. 5. Peter Wagner and Bernadette Rabuy, ‘Mass Incarceration: The Whole Pie 2016’ (Press Release, Prison Policy Initiative, 14 March 2016) <http://www.prisonpolicy.org/reports/ pie2016.html>; Danielle Kaeble, Lauren Glaze, Anastasios Tsoutis and Todd Minton, ‘Correction Populations in the United States, 2014’ (Statistical Table, US Department of Justice: Bureau of Justice Statistics, December 2015) 22, app Table 5 <http://www.bjs. gov/content/pub/pdf/cpus14.pdf>. 6. Josh Sanburn, ‘The U.S. Is Ending Private Prisons for Federal Inmates. So Where Will the Prisons Go?’, Time (online), 18 August 2016 <http://time.com/4458308/ justice-department-ending-private-prison-contracts/>. 7. See Calla Wahlquist, ‘Indigenous woman died in police custody after notification service not used’, The Guardian (online), 16 August 2016 <https://www.theguardian.com/ australia-news/2016/aug/16/indigenous-woman-died-in-police-custody-after-not ification-service-not-used>, Rachel Olding, ‘Indigenous woman Rebecca Maher died in custody walking home drunk, family say’, The Sydney Morning Herald (online), 16 August 2016 <http://www.smh.com.au/nsw/indigenous-woman-rebecca-maher-died-incustody-after-walking-home-drunk-family-say-20160816-gqtxbf.html>. 8. Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991). 9. See, eg, La Vigne et al, ‘Justice Reinvestment Initiative State Assessment Report’ (Report, US Department of Justice: The Urban Institute and Bureau of Justice Assistance, 2014). 10. Backing Bourke (Directed by Lisa McGregor, Australian Broadcasting Corporation, 2016).

Giving Victims of Intimate Partner Violence Offences a Voice in Indigenous Sentencing Courts

Court of Conscience

I INTRODUCTION

For approximately 15 years, Indigenous sentencing courts1 have been providing an avenue for Indigenous offenders, communities, and in some cases, victims, to have a greater voice in the sentencing process. Elders or Community Representatives work together with a judicial officer in understanding an offender’s behaviour, and in determining what penalty should be imposed to not only punish the offender but to assist in their rehabilitation.2 In most jurisdictions, breaches of family and domestic violence orders can be referred for sentencing in an Indigenous sentencing court.3 Feminist scholars have argued that the presence of gendered power imbalances in hearings concerning family and domestic violence make alternative justice processes, that are often less formal than a conventional justice process, unsuitable for victim participation.4 Despite these views, research has found that Indigenous sentencing courts, while not well-equipped to eradicate the presence of power imbalances between an offender and victim, do attempt to address imbalances of power through ‘shaming’ the offender in cultural*

Elena Marchetti*

Elena Marchetti is a Professor of Law and Australian Research Council Future Fellow in the Griffith Law School, Griffith University. She would like to thank the Elders and interview participants who generously gave up their time and contributed their knowledge in support of the research. The research was funded by an Australian Research Council Discovery Projects Grant (DP0985987) and Future Fellowship Grant (FT140100313). 1. The term ‘Indigenous sentencing courts’ is commonly used to collectively refer to courts that include the participation of Elders and Community Representatives in the sentencing court process. It is used to refer to courts that utilise a more culturally appropriate sentencing process for both Aboriginal and Torres Strait Islander (and in Queensland, Pacific Islander) offenders. To maintain consistency in terminology, this article uses the term ‘Indigenous’ when referring to the Aboriginal and Torres Strait Islander communities and people who are involved with the courts. 2. Elena Marchetti, ‘Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers, Elders, Community Representatives, and Indigenous Court Workers’ (2014) 36 Law & Policy 341. 3. As will be explained, Victoria and Western Australia exclude breaches of protection orders from being heard in their Indigenous sentencing courts. In Victoria, the Statewide Working Group that initially established the Koori Courts believed the complexity of such matters and the likelihood that they would not be able to be resolved in a collaborative manner, warranted such measures: Mark Harris, ‘A Sentencing Conversation’: Evaluation of the Koori Courts Pilot Program: October 2002–October 2004 (Department of Justice, 2006) 122. 4. Julie Stubbs, ‘Beyond Apology? Domestic Violence and Critical Questions for Restorative Justice’ (2007) 7 Criminology & Criminal Justice 169.

Giving Victims of Intimate Partner Violence Offences a Voice in Indigenous Sentencing Courts Elena Marchetti

ly appropriate ways and by creating a forum that is more meaningful to an offender than a mainstream sentencing process.5 Using data collected from interviews with victims of intimate partner violence offences, this article traces the extent to which victims of family and domestic violence participate in Indigenous sentencing courts in different jurisdictions. It explores what benefits, if any, victims experience from having the opportunity to have a say in sentencing processes that allow Indigenous cultural knowledge and values to be present. II JURISDICTIONAL DIFFERENCES

Over the past 15 years, Indigenous sentencing courts have been established in all states and territories around Australia (aside from Tasmania) to try and address the mistrust Indigenous Australians have of the mainstream criminal justice system and as an attempt to lessen the incongruity of the court system.6 Some courts have come and gone, and some lost funding and began operating under a different name, but then reappeared as a result of changes in government.7 Although the Indigenous sentencing courts operate within the mainstream criminal court system, with the involvement of Elders and Community Representatives they aim to make the court process more meaningful for Indigenous offenders, hoping to invoke change in an

5. 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. 6. Elena Marchetti and Kathleen Daly, ‘Indigenous Courts and Justice Practices in Australia’ [2004] (277) Trends & Issues in Crime and Criminal Justice 1. 7. In relation to Queensland’s Murri Courts, see Tony Moore, ‘Diversionary Courts Fall Victim to Funding Cuts’, Brisbane Times (online), 13 September 2012 <http://www. brisbanetimes.com.au/queensland/diversionary-courts-fall-victim-to-funding-cuts20120912-25sj5.html>. In relation to the Murri Court reopening, see Queensland Government, ‘Murri Court Opens in Rockhampton’ (Media Statement, 13 April 2016) <http://statements.qld.gov.au/Statement/2016/4/13/murri-court-opens-in-rock hampton>. In relation to the Western Australia Kalgoorlie Community Court suspension in 2015, see Amanda Banks, ‘Aboriginal Court Gets the Chop’, The West Australian (online), 14 August 2015 <https://au.news.yahoo.com/thewest/wa/a/29258150/ kalgoorlie-aboriginal-court-gets-the-chop/>. In relation to the Northern Territory Community Courts suspension in 2011, see Thalia Anthony, ‘Two Laws: Indigenous Justice Mechanisms in Context’ (2015) 18(1) Journal of Australian Indigenous Issues 99, 110.

Court of Conscience

offender’s attitude and behaviour.8 They have both community building and offending-centred aims, some of which, such as reducing the over-representation of Indigenous people in custody, are quite ambitious and unlikely to be achieved in the short term.9 They mainly operate at a Magistrates’ or Local Court level but they have also been operating at a County (District) Court level (in Victoria) and in Children’s Courts. In addition, all levels of South Australian criminal courts can now convene an Aboriginal sentencing conference prior to sentencing (according to section 9C of the Criminal Law (Sentencing) Act 1988 (SA)). In Port Lincoln, an Aboriginal conference can be convened out of court without the presence of a Magistrate, with the conference report being used in the sentencing hearing that follows.10 Victoria, New South Wales, Western Australia and the two territories (including the Northern Territory while its Community Courts were in operation) limit the types of offences that can be heard in their Indigenous sentencing courts, although there is no explanation for these limits in the legislation or procedural guidelines. Of particular relevance to this article is that a breach of a family violence intervention order or an offence arising from the same conduct is excluded in the adult jurisdiction of the Koori Court in Victoria, but not in the Children’s Koori Court Division, which ‘has the jurisdiction to hear and summarily determine all offences other than murder, attempted murder, manslaughter, culpable driving causing death and arson causing death’.11 The Western Australian Community Courts also exclude family violence, although ‘[s]ome family violence cases related to feuding have been heard in the court’.12 When they were operating, the Northern Territory Community Court guidelines recommended the exercise of caution when dealing with cases involving violence, domestic violence or where the victim was

8. Marchetti, ‘Delivering Justice in Indigenous Sentencing Courts’, above n 2. 9. Cultural and Indigenous Research Centre Australia, ‘Evaluation of Indigenous Justice Programs – Project A: Aboriginal and Torres Strait Islander Sentencing Courts and Conferences’ (Final Report, Attorney-General’s Department (Cth), January 2013). 10. Courts Administration Authority of South Australia, Aboriginal Programs (2012) <http:// www.courts.sa.gov.au/Community/Pages/Aboriginal-Programs.aspx#sentencing>. 11. Allan Borowski, ‘Indigenous Participation in Sentencing Young Offenders: Findings from an Evaluation of the Children’s Koori Court of Victoria’ (2010) 43 Australian and New Zealand Journal of Criminology 465, 469. See also Children, Youth and Families Act 2005 (Vic) ss 516, 519. 12. Heather Aquilina et al, ‘Evaluation of the Aboriginal Sentencing Court of Kalgoorlie’ (Final Report, Shelby Consulting, 16 October 2009) 21.

Giving Victims of Intimate Partner Violence Offences a Voice in Indigenous Sentencing Courts Elena Marchetti

Court of Conscience

a child.13 Sexual offences are excluded in Victoria,14 Western Australia,15 New South Wales,16 and the two territories.17 Certain drug offences, violent offences, stalking, offences involving the use of a firearm, and offences relating to child prostitution or pornography are also excluded in New South Wales.18 III PARTICIPATION OF VICTIMS OF DOMESTIC AND FAMILY VIOLENCE IN SENTENCING

In conventional Magistrates’ or Local Court sentencing hearings, victims of domestic or family violence are generally not encouraged to provide a victim impact statement, leaving them voiceless during the sentencing process. Other problems with the conventional court system are that courts may or may not provide appropriate separate waiting facilities, there may be unnecessary delays in processing orders due to the need to accommodate more than one jurisdiction to deal with all matters relating to domestic and family violence, and there may be conflicts between orders generated from different court jurisdictions.19 Specialist domestic and family violence courts have been introduced to address many of the problems victims of family and domestic violence face when navigating the conventional court system. However, the use of other innovative justice processes, such as restorative justice processes, have been criticised for not being able to adequately respond to victim safety and to the manipulation of the process by the offender.20 The presence of gendered power imbalances is of particular concern in matters involving domes-

13. Community Court Darwin, Community Court Darwin: Guidelines, 27 May 2005 <http:// www.nt.gov.au/justice/ntmc/docs/community_court_guidelines_27.05.pdf>. 14. Magistrates’ Court Act 1989 (Vic) s 4F(1)(b)(i). 15. Elena Marchetti and Kathleen Daly, ‘Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model’ (2007) 29 Sydney Law Review 415, 421 n 19. 16. Criminal Procedure Act 1986 (NSW) s 348(2)(b). 17. Magistrates Court of the Australian Capital Territory, Galambany Court, Practice Direction No 1 of 2012, August 2012, cl 12(iii) <http://cdn.justice.act.gov.au/resources/ uploads/Magistrates/Practice_Direction_1_of_2012_Galambany_Court.pdf>; Community Court Darwin, Community Court Darwin: Guidelines, 27 May 2005, cl 14. 18. Criminal Procedure Act 1986 (NSW) s 348(2). 19. Annette Hennessy, ‘Specialist Domestic and Family Violence Courts: The Rockhampton Experiment’ (Paper presented at the Ministerial Forum, Gold Coast, 16 June 2008). 20. Kathleen Daly and Julie Stubbs, ‘Feminist Engagement with Restorative Justice’ (2006) 10 Theoretical Criminology 9, 17.

Giving Victims of Intimate Partner Violence Offences a Voice in Indigenous Sentencing Courts Elena Marchetti

tic or family violence,21 since such violence reflects ‘“way[s] of ‘doing power’” in a relationship’.22 Power imbalances, in practice, can occur in various forms during a justice process such as through the use of intimidating language or behaviour on the part of the offender,23 silencing the victim either because they are not given the opportunity to speak frankly or because their experiences are misrepresented by others,24 or trivialising the harms experienced by the victim and their resulting needs.25 Proponents of the use of innovative justice processes such as restorative justice and Indigenous justice practices argue that victims are more likely to be given the opportunity to participate in the process; the community is engaged ‘to stop the violence and to repair the harms caused by it’26 and to define social norms; healing is emphasised by allowing the stories of the victims to emerge, often in the words of the victim;27 and offenders are given the opportunity to accept responsibility for their actions and to engage in intervention programs that are suited to their needs.28 Ultimately, non-conventional decision-making processes try to alleviate the problems generated by the participants’ emotions and the mainstream justice system (which discourages full and frank disclosure of all relevant facts), and which leaves the input of information and decision-making to only a select group of people.29

21. Ibid. 22. Donna Coker, ‘Transformative Justice: Anti-Subordination Processes in Cases of Domestic Violence’ in Heather Strang and John Braithwaite (eds), Restorative Justice and Family Violence (Cambridge University Press, 2002) 128, 141. 23. Daly and Stubbs, above n 20. 24. Gordon Bazemore and Twila Hugley Earle, ‘Balance in the Response to Family Violence: Challenging Restorative Principles’ in Heather Strang and John Braithwaite (eds), Restorative Justice and Family Violence (Cambridge University Press, 2002) 153, 166–9; Stubbs, above n 4, 173–4. 25. Donna Coker, ‘Enhancing Autonomy for Battered Women: Lessons from Navajo Peacemaking’ (1999) 47 University of California Los Angeles Law Review 1, 15. 26. Lois Presser and Emily Gaarder, ‘Can Restorative Justice Reduce Battering? Some Preliminary Considerations’ (2000) 27 Social Justice 175, 183. 27. Barbara Hudson, ‘Victims and Offenders’ in Andrew von Hirsch et al (eds), Restorative Justice & Criminal Justice: Competing or Reconcilable Paradigms? (Hart Publishing, 2003) 177, 183. 28. Daly and Stubbs, above n 20, 19; Presser and Gaarder, above n 26, 186; Stubbs, above n 4, 170. 29. Bazemore and Hugley Earle, above n 24, 161–2; Presser and Gaarder, above n 26.

Court of Conscience

IV VICTIM VOICES IN INDIGENOUS SENTENCING COURTS

Distrust of established criminal justice practices stemming from a legacy of colonisation has resulted in Indigenous community support of innovative justice practices for the resolution of family violence matters.30 Indigenous sentencing courts do not give Elders or Community Representatives complete control over the process and final sentence, but they do allow for the incorporation of Indigenous knowledge in the sentencing process and in this way, transform the sentence hearing into one that reflects Indigenous community values. Victims are more likely to be present in a Circle Court hearing, which is the model used in New South Wales. This is not the case with Indigenous sentencing courts that use a Nunga Court model, which is the model used in Queensland, Victoria and South Australia. Circle Court hearings are usually a few hours long and are often held in a venue that is culturally significant to the local Indigenous community instead of a mainstream court. The Nunga Court hearings are shorter and held in a mainstream court room which has, in most court sites, been remodelled so that all the participants sit around a bar table. The following findings come from interviews with 29 victims of intimate partner violence whose partners had been through an Indigenous sentencing court process in either Queensland or New South Wales. The interviews were conducted over a three-year period (from May 2010 to July 2013) and on average took approximately 20 minutes each. The interviews were conducted in the presence of an Elder or Aboriginal court worker, a requirement of the Human Research Ethics Committee. Twenty-five of the interview participants were Indigenous and four were non-Indigenous. All 10 of the victims whose partners had been through a Circle Court hearing had attended the process compared to only 7 (out of 19) of those whose partners had been through a Queensland Murri Court process. The remaining 12 victims did not attend a Murri Court process. The reasons why so few victims in Queensland had participated in the Murri Court sentence hearing included that they did not want to attend due to the fact that they thought the offending behaviour was something 30. See, eg, Larissa Behrendt, Achieving Social Justice: Indigenous Rights and Australia’s Future (Federation Press, 2003); Heather Nancarrow, ‘In Search of Justice for Domestic and Family Violence: Indigenous and Non-Indigenous Australian Women’s Perspectives’ (2006) 10 Theoretical Criminology 87; Boni Robertson, ‘Aboriginal and Torres Strait Islander Women’s Task Force on Violence’ (Report, Queensland Department of Aboriginal and Torres Strait Islander Policy and Development, 2000).

Court of Conscience

Giving Victims of Intimate Partner Violence Offences a Voice in Indigenous Sentencing Courts Elena Marchetti

their partner needed to address, not them; nobody had advised them that they could attend; or they had separated from their partner and did not want to see them. One victim thought she would be breaching the protection order if she attended. Of the 17 victims who attended the Indigenous sentencing court process in which their perpetrator was being sentenced, only one thought that the mainstream sentencing court process was less threatening than the Indigenous sentencing court process, confirming findings from other studies that have highlighted the unsupportive nature of legal processes.31 The victim who preferred the mainstream system was Indigenous and had participated in a New South Wales Circle Court process for the sentencing of her partner. She preferred the mainstream process because she felt more anonymous and less observed. The 16 victims who preferred the Indigenous sentencing court process to the mainstream process did so mainly because they felt that everyone, including the offender, was able to have a say. The presence of the Elders and the fact that the victim was able to explain how the violence had impacted on them made the perpetrator accountable.32 One of the victims described her experience in Circle Court as follows:

I wasn’t the least bit feeling humiliated or anything at Circle. I felt quite – like I had some power. I actually had some power. I had some backup around me. It wasn’t me sitting there at the police station trying to remember every little word and they’re saying, what happened next … what happened next. It was just – you had so much power, yeah, and back up.33

Instead of victims’ stories not being heard or being ‘heard, filtered, and interpreted through non-feminist social and legal narratives’,34 the vast majority of the victims who attended an Indigenous sentencing court hearing found it did allow their stories to emerge, resulting in a more positive justice experience. 31. Rosemary Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (Cambria Press, 2008). 32. This was also found in an earlier study of Indigenous sentencing courts which examined offender perceptions of justice: Elena Marchetti, ‘An Australian IndigenousFocussed Justice Response to Intimate Partner Violence: Offenders’ Perceptions of the Sentencing Process’ (2015) 55 British Journal of Criminology 86. 33. Interview with Victim 2 (Nowra, 17 May 2010). 34. Hunter, above n 31, 264.

V CONCLUSION

Traditionally, victims (of any crime) have little or no voice when it comes to sentencing an offender, particularly in lower courts. The victims who were interviewed for this study described how in the mainstream court process, they would be left to wait in an adjacent room with other victims of family and domestic violence if they attended court on the day their perpetrator was sentenced, often without being asked to speak to the judicial officer about their experiences or needs. Having the opportunity to tell the Circle or Murri Court how they felt about the offending behaviour and having the support of the Elders was a positive experience for all but one of the victims who attended an Indigenous sentencing court process. This study confirms that more consideration needs to be given to how victims of domestic and family violence can be empowered throughout the criminal justice process, and that we need to rethink the manner in which we allow victims to participate in a sentencing process. This is particularly pertinent for cases involving Indigenous offenders where Elders, who are respected by all those present at the hearing, can assist in ensuring a victim feels safe when addressing the court.

Giving a Voice to Aboriginal People: Why Aboriginal People in Australia Need Wills More than Anyone Else

Court of Conscience

Aboriginal people in Australia have a very low rate of will-making which means that on death they may either rely on intestacy rules or just ad hoc decision-making. The intestacy rules are mostly unsuitable because of different views about who is in the family, and ad hoc decision-making leaves communities in chaos. Aboriginal people also have a disproportionate level of disputes about disposal of the body. All this and other matters mean that, paradoxically, the best way to protect Aboriginal people’s customary law and culture may be to enfold the wishes of the individual into that ancient common law instrument, the will. The will allows the person to speak and authorise the decision-making of the executor in a way which many Aboriginal communities are now embracing. Death comes to everyone, but most of us prefer not to think about it, which is why many people in Australia do not make a will until quite late in life. Aboriginal people are very unlikely to make a will. This leaves Aboriginal people without the voice that the majority of non-Indigenous people have when it comes to dealing with their property on death. In many communities the passing of property happens ad hoc and creates chaos. The regime which governs inheritance in Australia comprises three parts. First, there is the law of wills, based on the idea of testamentary freedom. In Australia, unlike some European countries, a person can make a will which disposes of their entire estate. Australians generally have quite a high rate of will-making. In particular, most people over the age of 70 in Australia die leaving a will.1 But Aboriginal people have a very *

Prue Vines*

Professor, Faculty of Law, University of New South Wales. This article is based on research I have carried out over many years which has resulted in many publications, the latest being Prue Vines, Aboriginal Wills Handbook: A Practical Guide to Making Culturally Appropriate Wills for Aboriginal People (NSW Trustee and Guardian, 2nd ed, 2016) ('Aboriginal Wills Handbook'). The research is outlined and discussed in detail in Prue Vines, ‘The NSW Project on the Inheritance Needs of Aboriginal People: Solving the Problem by Making Culturally Appropriate Wills’ (2013) 16(2) Australian Indigenous Law Review 18. The 2013 survey by Newspoll for the NSW Trustee & Guardian showed 59 per cent of adults over 18 had made a will: Imelda Dodds, ‘Annual Report 2012–2013’ (Annual Report, NSW Trustee and Guardian, 2013) 5. In 2012, 79 per cent of Queenslanders over the age of 35 and 98 per cent of those over 70 had a current will: Jill Wilson and Cheryl Tilse, 'Will Making in Queensland' (Report, Office of the Public Trustee of Queensland, 2012) 16. The rates of grants of letters of administration on intestacy were 6 per cent of grants in New South Wales in 2003 and 13 per cent in Tasmania in 2005: New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report

Giving a Voice to Aboriginal People Prue Vines

low rate of will-making,2 so that very often when they die the second major part of our succession law, the law of intestacy, applies to them.3 The third part of succession law is called family provision or testator’s family maintenance. If after the death of a person their relatives or close connections can show that they have not been adequately provided for, a court can alter the distribution under the will or intestacy to ensure that that person is provided for. Family provision is important, but its disadvantage is that, unlike wills and intestacy, people must go to court to use the family provision legislation. These three areas of law together comprise the law of succession or inheritance operating in Australia. There are, of course, a number of other ways property is passed to another generation or passed on death which, strictly speaking, are not part of the law of succession – these include joint tenancy, some inter vivos trusts which operate beyond death, and superannuation. For those of us whose circumstances fit the Australian intestacy laws having the estate distributed on intestacy may cause inconvenience but no real problems as the intestacy laws in Australia pass the majority of property to the spouse and the children of the deceased. Only if there is no spouse and children (in most jurisdictions) do other people inherit and this is done through tracing blood and (now) adoptive relationships. In most cases, this means that the right people inherit and are protected from financial hardship. By ‘right people’ here I mean the people that the deceased person would have been most concerned to pass their property to. However, for Aboriginal people4 in Australia the intestacy laws may No 116 (2007) 5 [1.13]–[1.14]. The Victorian Law Reform Commission reported 7.75 per cent of grants involved total intestacy in 2010–11: Victorian Law Reform Commission, Succession Laws Consultation Paper – Intestacy, Consultation Paper No 13 (2012) 21 [2.23]. There are also a significant number of people who die for whom no grant either of probate (validity of the will) or intestacy (where there is no will) is made. They are the uncounted intestate, many of whom are Aboriginal. 2. The Aboriginal will-making rate is estimated at approximately 2–6 per cent. See, eg, Chris Cunneen and Melanie Schwartz, 'The Family and Civil Law Needs of Aboriginal People in NSW' (Final Report, Legal Aid NSW, 2008). 3. Administration and Probate Act 1969 (ACT); Succession Act 2006 (NSW) ch 4; Administration and Probate Act 1969 (NT); Succession Act 1981 (Qld) pt 3; Administration and Probate Act 1919 (SA) pt 3A; Intestacy Act 2010 (Tas); Administration and Probate Act 1958 (Vic) pt I div 6; Administration Act 1903 (WA) ss 12A–16. 4. Although much of what I am saying applies also to Torres Strait Islanders, in this article I focus on Aboriginal people because I did my research in NSW. I also refer mostly to NSW law to illustrate the issues I am discussing, although many also apply to Aboriginal

Court of Conscience

not fit at all well. There are a number of problems which may arise. The first and most important problem is that our intestacy laws are based on a view of who is included in a family which may not fit the patterns in Aboriginal culture. It is important here to recognise that the fact that an Aboriginal person lives in the city or appears to live a ‘non-traditional’ life does not mean that she or he has changed their idea of who counts in their family. For example, in some Aboriginal groups, person A may think of persons B and C as their children. However, the common law may think of person B as the ‘child’ of A while person C is a ‘niece’ or ‘nephew’ of A. So if the intestacy rules apply there will be people whom the deceased thinks of as their children who will not be entitled to inherit from them. This is not an insignificant matter of terminology, because just as non-Aboriginal Australians expect a parent to look after a child, so do kinship relationships import obligations for Aboriginal people. This is just one example of the many Aboriginal ideas about kinship which do not fit the kinship structure the common law uses. So the kinship structures in the intestacy legislation,5 which are generally focused very much on bloodlines and nuclear family structures, may be inappropriate for Aboriginal people whose kinship views are less concerned about blood relationships and are often more complex than those contemplated by the common law.6 Extra complexity is added to this problem by the fact that not all Aboriginal communities will have the same kinship or other customary law rules. It is worth remembering that Australia is a country larger than Europe and that Aboriginal people represent many nations within that area. Guardianship of children may also be rendered problematic by a failure to understand different kinship structures and child-rearing practices. For example, in many Aboriginal cultures, traditionally the mothers went out to find food while the grandmothers looked after the children. This pattern continues today in some urban settings. When guardianship of children is being decided in courts the person most obvious to the Aboriginal people concerned, the grandmother, may not be regarded as obvious by the court who may misunderstand both who is the grandmother, and that this is the proper default carer for children. people across Australia. 5. For example, in Succession Act 2006 (NSW) pt 4 refers to ‘children’ and ‘issue’. This assumes the common law definitions of those relatives, which are blood-defined; see definitions under the Status of Children Act 1996 (NSW) ss 5(1), 14 and its equivalents. 6. Ian Keen, ‘Kinship’ in Ronald Murray Berndt and Robert Tonkinson (eds), Social Anthropology and Australian Aboriginal Studies (Aboriginal Studies Press, 1988) 80.

Giving a Voice to Aboriginal People Prue Vines

A further problem for Aboriginal people on intestacy is the greater possibility of burial disputes. There are a disproportionate number of burial dispute cases involving Aboriginal people compared with the general population.7 This is an indication of the importance of burial in the right place for Aboriginal people. This reflects the importance of land and the connection to land in Aboriginal people’s lives. As older dispute resolution patterns have fallen into disuse a gap has arisen in mechanisms for resolving disputes about burial. Many disputes have gone to court for resolution, and that resolution has often been difficult because there are no rules about who has the right to deal with the body on intestacy. The issue has often been decided by the courts on the basis of convenience,8 so that no consistent rule has been produced. By contrast where a will has named an executor, the executor is the person with the right to deal with the body.9 Because it is not clear who has this right when a person dies intestate, people are forced to take the matter to court, which is expensive and time-consuming. Making a will and appointing a person as executor may prevent disputes arising in Aboriginal communities because it is clear who is the person who is entitled to decide. In the communities I consulted,10 there was enormous interest in this fact. In the Northern Territory, New South Wales and Tasmania, the relatives of Aboriginal people who die intestate may apply for a grant of distribution on the basis of Aboriginal customary law.11 However, this requires the relatives to agree on what the customary law is and that can be very onerous. It is a useful corrective to the normal intestacy laws, but it is easier and more efficient to make a will. Making sure that the correct people inherit property, act as guardians and make decisions about the body can be done by a will in a way that is culturally appropriate for Aboriginal people when intestacy may not be appropriate. Ritual knowledge or objects may also be passed by a will and it may be possible for this to be done secretly. Secrecy is extremely important 7. 8. 9. 10.

11.

Prue Vines, ‘Consequences of Intestacy for Indigenous People in Australia: The Passing of Property and Burial Rights’ (2004) 8(4) Australian Indigenous Law Reporter 1, 5. See, eg, Jones v Dodd (1999) 73 SASR 328. Williams v Williams (1882) 20 Ch D 659. Prue Vines, ‘The NSW Project on the Inheritance Needs of Aboriginal People: Solving the Problem by Making Culturally Appropriate Wills’ (2013) 16(2) Australian Indigenous Law Review 18. See, eg, Succession Act 2006 (NSW) pt 4.4; Intestacy Act 2010 (Tas) pt 4.

Court of Conscience

‘Death comes to everyone, but most of us prefer not to think about it, which is why many people in Australia do not make a will until quite late in life. Aboriginal people are very unlikely to make a will. This leaves Aboriginal people without the voice that the majority of non-Indigenous people have when it comes to dealing with their property on death.’

Giving a Voice to Aboriginal People Prue Vines

for many Aboriginal customary law matters. In many Aboriginal groups matters must only be known to the people who are qualified to know them. To everyone else the matter is unknown. It is possible to use a will to create a secret or half-secret trust. Such a trust arises where a gift is given to a person who is to hold it for another person. The secrecy arises because either the existence of the trust or its terms are secret and known only to the testator or will-maker and the trustee and possibly the beneficiary.12 When the will is published these matters will therefore not become public with the rest of the will. Aboriginal customary law which is committed to a will is protected by the common law insofar as it is the expression of the testator’s intention to which his or her executors are expected to give effect. What a will can do is give the person making it a voice that they leave behind them. In their will a person can express what they want and have much of this gain the force of law. If we think about this for a moment the truly remarkable nature of the will becomes apparent. Because the will is an individual document it allows the testator to ensure that the people the testator wishes to inherit do so; the testator can place conditions and express their wishes about the property they pass on. There is no requirement that a person own substantial real estate. Any property at all will be sufficient for a will to be made. By appointing an executor, the testator chooses a person who has virtually all the rights and powers that the testator had when he or she was alive, including the right to decide how to deal with the body. For the Aboriginal people I consulted in my research this was one of the most attractive things about making a will. It is significant that there is a burgeoning Aboriginal middle class. In 2006, there were 14 000 Aboriginal professionals, comprising 13 per cent of the Indigenous workforce in Australia.13 An Aboriginal person living a totally traditional life (rare in NSW) may not need to pass on any property at all. But the majority of Aboriginal people in NSW live a mixed traditional and urban or rural life. This creates concerns for lawyers 12. Voges v Monaghan (1954) 94 CLR 231. 13. Julie Lahn, ‘Aboriginal Professionals: Work, Class and Culture’ (Working Paper No 89/2013, Centre for Aboriginal Economic Policy Research); Marcia Langton, ‘The Quiet Revolution: Indigenous People and the Resources Boom’ (Speeches delivered at Boyer Lecture Series, The University of Melbourne, 18 November–2 December 2012) <http://www.abc.net.au/radionational/programs/boyerlectures/2012-boyer-lectures/4305696>; also available as Marcia Langton, The Quiet Revolution: Indigenous People and the Resources Boom (Harper Collins, 2013).

Court of Conscience

drafting wills. As wealth accumulates, Aboriginal people are more likely to perceive the need for wills and to feel that they can afford to have a will made, but lawyers may not be trained to draft culturally appropriate wills, and indeed may not recognise at all that there are reasons to draft wills differently for Aboriginal middle class testators as well as for poorer Aboriginal testators. This is a significant issue which I sought to address by developing the Aboriginal Wills Handbook.14 Over the last four or five years, partly because of increased recognition of the need created by work like mine, there has been a significant increase in the making of wills by Aboriginal people. This has been facilitated by pro bono lawyers, community legal centres and private practitioners who are interested in ensuring that the wishes of Aboriginal people are given effect so that chaos does not ensue when somebody in the Aboriginal community dies. This is a significant way of giving a voice to people whose voices have not been heard in the past in this area of law and life; it needs to be fostered by the knowledge of lawyers, law students and Aboriginal people themselves so that the disastrous state of affairs which has often existed in the past, after an Aboriginal person died, will be replaced by the clear voice of the deceased in the form of their will and their executor managing their estate in the way that the deceased person thought best.

14. Prue Vines, Aboriginal Wills Handbook: A Practical Guide to Making Culturally Appropriate Wills for Aboriginal People (NSW Trustee and Guardian, 2nd ed, 2016).

‘One Country, Two Systems’: The Middle Way for Protecting Human Rights in Hong Kong

Court of Conscience

I INTRODUCTION

‘One country, two systems’ is the constitutional principle that underpins Hong Kong’s status as a Special Administrative Region of the People’s Republic of China. In recent times, however, there have been calls for a total rejection of 'one country, two systems' and the pursuit of Hong Kong's independence instead. Indeed, the Hong Kong National Party, one of two pro-independence parties currently in existence, has publicly repudiated Hong Kong’s Basic Law, the region’s primary constitutional document.1 These calls have intensified since the Hong Kong booksellers’ incident, where five booksellers were arrested by Chinese mainland law enforcement in October 2015,2 with some allegedly being abducted in Hong Kong by mainland officials.3 One of the booksellers who disappeared and later returned to Hong Kong, Lam Wing-kee, has publicly called for independence and, by extension, the end of ‘one country, two systems’.4 This article argues that ‘one country, two systems’ is Hong Kong’s most viable option to protect its citizens’ freedom and rights given the *

Johnson Man*

Johnson is a first year student studying Law/Social Research and Policy at the University of New South Wales. Born in Hong Kong but raised in Australia since the age of one, he retains a keen interest in Hong Kong politics. 1. Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (‘Basic Law’); Ng Kang-chung and Owen Fung, ‘Hong Kong National Party is Born: Will Push for Independence, Will Not Recognise the Basic Law’, South China Morning Post (online), 28 March 2016 <http://www.scmp.com/news/hong-kong/politics/ article/1931384/hong-kong-national-party-born-will-push-independence-will>. 2. David Brunnstrom and Mohammad Zargham, ‘Concerns Rise Over Disappearance of Hong Kong Booksellers’, The Sydney Morning Herald (online), 9 January 2016 <http:// www.smh.com.au/world/concerns-rise-over-disappearance-of-hong-kong-booksellers-20160108-gm2dh0.html>; Greg Torode and Nick Macfie (ed), ‘Chinese Police Break Silence on Missing Hong Kong Bookseller’, Reuters (online), 29 January 2016 <http:// www.reuters.com/article/us-hongkong-bookseller-idUSKCN0V803C>. 3. Jennifer Ngo, ‘Full Transcript of Lam Wing-kee’s Opening Statement at his Hong Kong Press Conference’, South China Morning Post (Hong Kong), 17 June 2016 <http://www.scmp.com/news/hong-kong/law-crime/article/1976598/ full-transcript-lam-wing-kees-opening-statement-his-hong>; but see South China Morning Post, ‘“Dear Ping…” Another Letter from Missing Hong Kong Bookseller Lee Bo Surfaces’, South China Morning Post (Hong Kong), 18 January 2016 <http://www.scmp.com/news/hong-kong/law-crime/article/1902304/ dear-ping-another-letter-missing-hong-kong-bookseller-lee>. 4. Wei Du, ‘“Doable” for Hong Kong to Seek Independence: Bookseller Lam Win-kee’, Channel News Asia (online), 19 June 2016 <http://www.channelnewsasia.com/news/ asiapacific/doable-for-hong-kong-to/2885976.html>.

Court of Conscience

‘One Country, Two Systems’ Johnson Man

political realities they confront. The alternative, namely, the pursuit of independence by force, would cause disastrous costs to human life, economic prosperity and social harmony. Given the power imbalance between mainland China and Hong Kong, a push for independence would likely result in a violent crackdown by Beijing authorities. Both sides should instead work towards effective adherence to ‘one country, two systems’ in order to balance Hong Kong’s rights and freedoms with China’s national security. II THE VALUE OF RIGHTS AND FREEDOMS

Conceptually, rights and freedoms exist in a liberal society because they allow an individual to exercise their liberty. The purpose of ideas such as freedom of speech, freedom of religion and the rule of law in a democratic society are to prevent minorities from being ignored or marginalised by the majoritarian nature of democracy.5 This is because, theoretically, in a pure democracy, only the views of the majority are taken into consideration,6 a scenario that worried even the Founding Fathers of the United States. In order to prevent a ‘tyranny of the majority’, liberal democracy aims to carefully balance the interests of the minority with those of the majority.7 In Hong Kong’s context, liberal rights and freedoms can protect the voice of minority groups that may not otherwise receive appropriate attention from the state. Freedom of association, for instance, allows for the formation of non-government organisations that have sought to raise awareness of the treatment of Filipino maids in the city. Over 321 000 foreign domestic workers in Hong Kong have historically been the subject of discrimination.8 Under an exclusion clause in the Immigration Ordinance,9 these workers have been excluded from obtaining Hong Kong permanent residency, even after living in the region for seven 5. Graham Maddox, Australian Democracy in Theory and Practice (Pearson Education Australia, 5th ed, 2005) 20; Margaret Canovan, ‘Trust the People! Populism and the Two Faces of Democracy’ (1999) 47 Political Studies 2, 7; see generally Christopher Wellman, Liberal Rights and Responsibilities: Essays on Citizenship and Sovereignty (Oxford University Press, 2013). 6. Canovan, above n 5, 7. 7. Maddox, above n 5, 3. 8. Ronald Mok, ‘Foreign Domestic Helpers in Hong Kong: Towards Equality of Rights’ (2008) 1 Queensland Law Student Review 102, 110–12. 9. Immigration Ordinance (Hong Kong) cap 115, s 2(4)(a)(vi).

years. Freedom of speech, meanwhile, has enabled pro-democracy groups to challenge and criticise the government without fear of retribution. As such, rights and freedoms in Hong Kong play a pivotal role in protecting the voice of minorities and furthering the development of a democratic political culture. III HONG KONG’S POLITICAL REALIT Y

Since the resumption of Chinese sovereignty over Hong Kong on 1 July 1997,10 Hong Kong has faced the reality of Chinese Communist Party (‘CCP’) rule over its liberal and relatively democratic city-state. It is well known that the CCP is preoccupied with national security, given its commitment to preserving national unity and stability.11 The CCP has repeatedly and emphatically demonstrated that it is ready to use whatever means necessary to defend national security. Chinese policies in Tibet and Xinjiang, as well as its actions during the Tiananmen Square crackdown on 4 June 1989 are evidence of this. As such, it is likely that Hong Kong will be forced to compromise its freedoms in order to meet China’s national security interests. The push by Beijing in 2003 for the passage of a National Security Bill12 to fulfil article 23 of the Basic Law13 is an example of this. Though, in the face of community opposition, the government ultimately dropped the Bill. However, it must be emphasised that the need to compromise rights and freedoms is not unique to the recent period of Chinese sovereignty over Hong Kong. Indeed, during the days of British colonial rule, freedoms in Hong Kong were similarly curtailed in order to satisfy the interests of the British government. Issued by decree of the Governor in the aftermath of the 1967 riots,14 the Public Order Ordinance gave sweeping 10. China’s resumption of sovereignty over Hong Kong on 1 July 1997 is also known internationally as the ‘The Handover’. 11. See, eg, Kerry Brown, CEO, China: The Rise of Xi Jinping (I B Tauris, 2016); Daniel A Bell, The China Model: Political Meritocracy and the Limits of Democracy (Princeton University Press, 2015); David Shambaugh, China’s Communist Party: Atrophy and Adaptation (Woodrow Wilson Center Press, 2008). 12. <<國家安全 (立法條文) 條例草案>> [National Security (Legislative Provisions) Bill] 2003 (Hong Kong Special Administrative Region) Legislative Council, 10 July 2003. 13. <<中華人民共和國香港特別行政區基本法>> [Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China] art 23. 14. The 1967 riots were large-scale leftist riots by pro-communists against the British colonial administration. What initially began as peaceful demonstrations on the streets of Hong Kong rapidly escalated to violent clashes between protesters and the British

‘One Country, Two Systems’ Johnson Man

Court of Conscience

powers to the police including the power to prohibit any public gatherings, meetings or processions.15 Additionally, before the Joint Declaration on the Question of Hong Kong was signed in 1984, Hong Kong’s Legislative Council was wholly appointed by the Governor, with no elected members to give voice to the community.16 It is important to note that whilst Britain itself was a liberal democracy, for most of Hong Kong’s colonial history there was little desire to govern Hong Kong democratically. Indeed, the Governor of Hong Kong was not elected and was appointed by the British monarch; by contrast, the Chief Executive today is elected by an Election Committee of 1200 members.17 As such, since the beginning of British colonial rule through to the present post-handover era, Hong Kong has faced and will continue to face the political reality of needing to accommodate the concerns of a national government. IV THE MIDDLE WAY – ‘ONE COUNTRY, TWO SYSTEMS’

‘One country, two systems’ functions as an effective compromise between the Chinese mainland and Hong Kong’s priorities. Originally proposed by Chinese leader Deng Xiaoping, the principle is the ultimate exercise in political compromise. Through the Basic Law, it melds the interests of both Hong Kong and China into a viable ‘middle way’. Mutual adherence to ‘one country, two systems’ can fulfil the needs of both China and Hong Kong, albeit imperfectly. At its core, ‘One country, two systems’ protects Hong Kong’s distinctive characteristics whilst also upholding Chinese national unity by ensuring Chinese sovereignty over Hong Kong. The principle guarantees a ‘high degree of autonomy’ for Hong Kong as stipulated in the Sino-British authorities. Order was finally restored through the imposition of emergency regulations by the British authorities and a crackdown by police and British military forces against the leftists. The riots left 52 dead, 802 injured and over 1936 were arrested by the authorities. 15. Public Order Ordinance (Hong Kong) cap 245, s 17E. 16. Hong Kong, Charter of the Colony of Hong Kong, No 26, 5 April 1843, 283; Joint Declaration on the Question of Hong Kong, China-United Kingdom, signed 19 December 1984, 1399 UNTS 33 (entered into force 27 May 1985) ('Sino-British Joint Declaration'). 17. Though most would argue that this is not sufficiently democratic, and have called for the introduction of universal suffrage to elect the Chief Executive. These calls stem from Basic Law art 45 which states that the ultimate aim in the selection of the Chief Executive is ‘by universal suffrage upon nomination by a broadly representative nominating committee’.

Court of Conscience

‘One Country, Two Systems’ Johnson Man

Joint Declaration18 and the Hong Kong Basic Law.19 The Basic Law serves as the ‘mini-constitution’ of Hong Kong, with all systems and policies based on its provisions.20 It protects ‘wide-ranging rights and freedoms’ for Hong Kong residents which conform to international standards.21 For instance, article 27 specifically protects ‘freedom of speech’ for Hong Kong residents.22 Article 28 prohibits ‘unlawful arrest, detention or imprisonment’.23 Additionally, article 39 and the Bill of Rights Ordinance incorporate the provisions of the International Covenant on Civil and Political Rights into Hong Kong law.24 These are but a small selection of the plethora of rights that are protected in Chapter III of the Basic Law.25 Other articles reinforce the separateness of Hong Kong’s political, legal and economic systems from the mainland.26 These protections enable minority or opposition groups to exercise their rights, express their views and criticise the government without fear. At the same time, the Basic Law imposes obligations on Hong Kong to ensure its compliance with the ‘one country’ aspect of the principle. At its simplest level, the Basic Law places Hong Kong under the sovereignty of the mainland Chinese government. Articles 13 and 14 also give the Chinese government exclusive power to administer matters concerning foreign affairs and defence in Hong Kong.27 Article 17 provides the National People’s Congress with the power to reject a law passed by the Hong Kong Legislative Council that goes against the Basic Law.28 As

18. Sino-British Joint Declaration art 2. 19. Basic Law art 2. 20. Rao Geping and Wang Zhenmin, ‘Hong Kong’s “One Country, Two Systems” Experience under the Basic Law: Two Perspectives from Chinese Legal Scholars’ (2007) 16 Journal of Contemporary China 341, 343; Department of Justice, Legal System in Hong Kong (11 March 2016) Department of Justice of the Hong Kong Special Administrative Region of the People’s Republic of China <http://www.doj.gov.hk/eng/legal/>. 21. Geping and Zhenmin, above n 20, 352. 22. Basic Law art 27. 23. Ibid art 28. 24. Ibid art 39; Hong Kong Bill of Rights Ordinance (Hong Kong) cap 383. 25. Basic Law arts 25–41. 26. For provisions on Hong Kong’s separate political system, see Basic Law arts 3, 5, ch IV. For the article that prohibits mainland Chinese interference on Hong Kong’s own affairs, see Basic Law art 22(1). For provisions on the judiciary, see Basic Law ch IV s 4, and specifically on the independence of the judiciary see Basic Law art 85. For provisions on the economic system of Hong Kong, see Basic Law arts 5–7, ch V. 27. Ibid arts 13, 14. 28. Ibid art 17.

stated earlier, article 23 requires Hong Kong to implement its own legislation on national security issues.29 V INDEPENDENCE AS THE ALTERNATIVE?

However, not everyone in Hong Kong would agree that ‘one country, two systems’ is the only option. Pro-independence groups, such as the Hong Kong National Party and Hong Kong Independence Party advocate for Hong Kong to pursue independence from China. According to these groups, independence would allow Hong Kong to determine its own laws and protect rights and freedoms to the fullest extent, without any need to conform to Chinese national interests. They also cite the example of Singapore, which similarly to Hong Kong, is a city-state that gained independence from Malaysia in the 1960s and still succeeded in becoming a prosperous developed country.30 Unfortunately, this author believes that Hong Kong independence is entirely unrealistic. There is no scenario where China would allow Hong Kong to become independent. As established earlier, the CCP is committed to maintaining national unity. It has even threatened Taiwan with war should it declare independence, even though Taiwan possesses a formidable conventional military and an alliance with a nuclear-armed United States.31 Any attempt at independence by Hong Kong through negotiation or lawful means would not succeed simply because China has no reason to compromise. Additionally, a core problem of the comparison between Hong Kong and Singapore is that Singapore was actually expelled from Malaysia, rather than having actively sought independence,32 partly due to racial tensions with the majority Chinese in Singapore.33 There is no such situation in Hong Kong today, as Hong Kong is seen as an integral part of the Chinese nation. 29. Ibid art 23. 30. Peter Kammerer, ‘Seekers of Hong Kong Independence Must Get Real’, South China Morning Post (online), 11 April 2016 <http://www.scmp.com/comment/insight-opinion/ article/1935185/seekers-hong-kong-independence-must-get-real>. 31. See, eg, Ben Blanchard, J R Wu and Nick Macfie (ed), ‘China Says its People Will Never Stand for Taiwan Independence’, Reuters (online), 27 May 2016 <http://www.reuters. com/article/us-china-taiwan-idUSKCN0YH08R>; «反分裂国家法» [Anti-Secession Law] (People’s Republic of China) Presidential Decree No 34, 14 March 2005. 32. Kevin Tan, Constitutional Law in Singapore (Kluwer Law International, 2011) 16. 33. Lee Kuan Yew, From Third World to First: The Singapore Story 1965–2000 (Harper Collins, 1st ed, 2000).

Court of Conscience

‘One Country, Two Systems’ Johnson Man

Even if Hong Kong were to seek independence through violence as advocated by some pro-independence activists,34 the chance of success is minimal. Hong Kong has no military forces of its own, has a population of approximately 7 million and has no formal allies in the global community. By contrast, China has a military force of over 2 million regular soldiers and a large militia and security force that are veterans of the long-running unrest in Xinjiang and Tibet.35 Additionally, China has a population of over 1.4 billion, as well as significant and growing diplomatic clout.36 The CCP is prepared to go to war over Taiwanese independence. It also has a history of responding firmly against threats to national unity through its ‘hard power strategies’ in Tibet and Xinjiang,37 or at Tiananmen Square. Thus, it is not difficult to discern the CCP’s likely stance on Hong Kong independence. Any pro-independence uprising would first be contained by the Hong Kong authorities under existing laws.38 Should this be insufficient, the Chinese mainland would likely intervene to firmly quash the unrest with its own security forces. The costs of such an attempt at independence would be significant. At a minimum, a loss in business confidence would engender economic costs. At worst, it could result in the actual loss of lives from the unrest and subsequent crackdown. More fundamentally, it may lead to the end of Hong Kong’s status as a Special Administrative Region of China. The CCP, fearing further threats to national unity, may exercise direct control over Hong Kong in the aftermath, abolish the Basic Law and end Hong Kong’s ‘high degree of autonomy’. Human rights such as freedom of the press, freedom of association and the rule of law would no longer be guaranteed.

34. At a news conference in March 2016, Hong Kong National Party leader Chan Ho-tin stated that ‘staging marches or shouting slogans is obviously useless now. Regarding using violence, we would support it if it is effective to make us heard’: Kang-chung and Fung, above n 1. 35. Michael S Chase et al, ‘China’s Incomplete Military Transformation: Assessing the Weaknesses of the People’s Liberation Army (PLA)’ (Report, Research and Development Corporation, 2015) 22, 26, 53. 36. See, eg, G John Ikenberry, ‘The Rise of China and the Future of the West: Can the Liberal System Survive?’ (2008) 87(1) Foreign Affairs 23. 37. Liselotte Odgaard and Thomas Nielsen, ‘China’s Counterinsurgency Strategy in Tibet and Xinjiang’ (2014) 23 Journal of Contemporary China 535, 554. 38. Public Order Ordinance (Hong Kong) cap 245, s 17E is the most obvious of the laws that would be enforced by Hong Kong Police against any pro-independence groups resorting to violence.

As such, Hong Kong independence is not a realistic or desirable alternative to ‘one country, two systems’. This is not to say that ‘one country, two systems’ is the perfect solution. On the contrary, there are a plethora of ways in which the implementation of this principle can be improved. Universal suffrage to elect the Chief Executive should be further pursued, following the failure of the electoral reform plan in 2015.39 Additionally, China should clarify what transpired with the Hong Kong booksellers’ incident, and should endeavour to not abduct Hong Kong residents to the mainland. VI CONCLUSION

Rights and freedoms are essential to a liberal society because they protect minorities whilst also allowing individuals to exercise their liberties. Hong Kong has a well-developed tradition of liberalism inherited from the days of British colonial rule. These liberal values now form part of Hong Kong’s unique identity – they cannot be separated or excised. In order to protect these values, ‘one country, two systems’ and the Basic Law must be closely followed by both China and Hong Kong. China must respect Hong Kong’s ‘high degree of autonomy’, whilst Hong Kong must enthusiastically embrace its place in the Chinese nation.

39. For background details on the 2015 electoral reform plan, see Government of the Hong Kong Special Administrative Region of the People’s Republic of China, ‘Method for Selecting the Chief Executive by Universal Suffrage’ (Consultation Report and Proposals, April 2015) <http://www.2017.gov.hk/filemanager/template/en/doc/report_2nd/consultation_report_2nd.pdf>.

Protecting Minority Languages and the Muteability of International and Australian Law

Court of Conscience

This article explores the right of minority groups to use and enjoy their own language and the degree to which that right is protected under international and Australian law. Non-binding international instruments, human rights legislation, jurisprudence of the United Nations Human Rights Committee and a recent judgment from the Federal Court of Australia are reviewed. It is contended that both the international legal regime and Australian law are deficient. International law reflects the will of incumbent states who will resist recognising language rights for fear of a further push by minorities for political autonomy. Australian law can prove incapable of remedying a plaintiff’s grievance, including because no human rights violation can be established. But political recognition for minority groups is not an inevitable consequence of ensuring respect for and the protection of language rights. The right of minority groups to enjoy their own language is inadequately protected under international and Australian law. Both legal regimes protect incumbent political actors from assertions of self-expression, differential treatment and ultimately political recognition by minority groups. To that extent, these legal systems will resist change. This article explores some of the reasons as to why this is the case. The parameters of a ‘minority’ group under international law are unclear.1 Definitions have been suggested, for example, by human rights specialists,2 as well as international courts and tribunals.3 However a minority group may be defined, a distinctive language is a common attribute. But international law does not offer any authoritative guidance on what is a ‘language’. A common language is part of the rights enjoyed by a minority group, but is also used as an identifier for the existence of a minority group. In other words, language is both an identifiable attribute and a definitional aspect. But this approach emphasises the functionality of language rather than its definition. The ordinary meaning of language could be used, provided it was not self-limiting. In any event, the essential elements of minority identity commonly include religion, language, traditions and cultural heritage, and it might be thought that obligations

Stephen Tully*

Barrister, 6 St James’ Hall Chambers. Thanks to an anonymous reviewer for their helpful comments and the journal editors for all their assistance. 1. See generally Kristin Henrad, International Protection of Minorities (Max Planck Encyclopedia of Public International Law, 2011). 2. Francesco Capotorti, Special Rapporteur, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN.4/Sub.2/384/Rev 1 (1979) para 568. 3. Grego-Bulgarian Communities (Advisory Opinion) [1930] PCIJ (Ser B) No 17, 17.

Court of Conscience

Protecting Minority Languages Stephen Tully

100

should be imposed on states to promote the necessary conditions in which minorities can maintain each of those aspects. The International Covenant on Civil and Political Rights (‘ICCPR’) relevantly provides that, ‘[i]n those States in which … linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group … to use their own language’.4 But article 27 raises more questions than answers.5 The obligation for states parties is stated in negative terms, and direct, positive measures of government support for minority languages are not mandated. In other words, article 27 is framed as a ‘tolerance right’, which ensures non-interference by the state in language use, rather than a ‘promotion-oriented’ one, which extends to positive measures to improve language access in public institutions, such as courts, public schools and public services.6 This approach is generally consistent with the treatment afforded to other civil and political rights which typically defer to a state’s attitude and measures. One consequence is that international law is rendered subsidiary to a state’s domestic law to a point of near-total inefficacy. In its interpretation of article 27, the United Nations Human Rights Committee (‘the Committee’) has not recommended any particular positive steps to be taken by states (for example, the required level of funding for minority language schools) and primarily assesses compliance by reference to the legal position rather than the actual effects of national language policy. The Committee has recognised that, although minority rights, like other personal rights, are conferred on individuals as such, use of a language is enjoyed in community with other members 4. Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 27. 5. Ibid; see also Christian Tomuschat, ‘Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights’ in Rudolf Bernhardt et al (eds), Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte: Festschrift fur Hermann Mosler (Springer, 1983) 949. 6. Heinz Kloss, Grundfragen der Ethnopolitik im 20 Jahrhundert. Die Sprachgemeinschaften zwischen Recht und Gewalt (1969), cited in Lauri Mälksoo, ‘Language Rights in International Law: Why the Phoenix is Still in the Ashes’ (1998– 2000) 12 Florida Journal of International Law 432, 442. Within the latter category, instead of granting ‘official’ recognition to minority languages, states may employ a ‘norm-and-accommodation’ approach, which involves accommodations granted as a special exception to the general rule that the ‘normal’ or dominant language is used in the public sphere: Will Kymlicka and Alan Patten, ‘Language Rights and Political Theory’ (2003) 23 Annual Review of Applied Linguistics 3, 8–9.

of a group.7 The relevant right is the right of individuals belonging to a linguistic minority to use their language among themselves in private or public, which is distinct from other language rights protected under the ICCPR, including the right to freedom of expression protected under article 19 which is available to all persons, irrespective of whether they belong to minorities or not.8 Article 27 is directed towards ensuring the survival and continued development of the cultural, religious and social identity of minorities, thereby enriching the fabric of society as a whole.9 Standards concerning minority languages are also elaborated under the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (‘the Minority Rights Declaration’).10 For example, article 4(3) provides that ‘States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue’.11 States shall also ‘take measures to create favourable conditions to enable persons belonging to minorities … to develop … their … language … except where specific practices are in violation national law or are contrary to international standards’.12 The protection of minority languages is most advanced within Europe. The leading instrument is the European Charter for Regional or Minority Languages,13 which is, again, not binding. The Framework Convention for the Protection of National Minorities recognises the right of minorities to use their language in private and in public, and in particular to speak their language when engaging with administrative authorities.14 Moreover, states are required to take steps to ensure that minorities have an effective voice within the institutions of national government.15 7. 8. 9. 10. 11. 12. 13. 14. 15.

Human Rights Committee, CCPR General Comment No 23: Article 27 (Rights of Minorities), 50th sess, UN Doc HRI/GEN/1/Rev.1 (8 April 1994) paras 5.2, 5.3 and 9. ICCPR art 19. Ibid art 27. GA Res 47/135, UN GAOR, 47th Session, 92nd plen mtg, Agenda Item 97(b), UN Doc A/ RES/47/135 (18 December 1992). Ibid art 4(3). Ibid art 4(2). Opened for signature 5 November 1992, ETS No 148 (entered into force 1 March 1998). Opened for signature 1 February 1995, ETS No 157 (entered into force 1 February 1998) art 10. Organization for Security and Co-operation in Europe, High Commissioner on National Minorities, The Lund Recommendations on the Effective Participation of National Minorities in Public Life and Explanatory Note (1999) 6.

101

Protecting Minority Languages Stephen Tully

102

Special arrangements include minority representation, allocating seats to minorities in the executive and judiciary, and ensuring the appointment of minorities within the public service. It is additionally noteworthy that minority language rights are boundup with other rights, including minority rights generally, cultural rights, the right to equality and freedom from non-discrimination, freedom of expression, children’s rights, the right to an education and the right to a fair trial. Bundling rights together is neither good nor bad per se provided respect for one right does not entail a trade-off for another. For example, an accused has a right to be informed of the reasons for their arrest as well as the charge in an understandable language.16 Everyone is entitled to have the free assistance of an interpreter if they cannot understand or speak the language used in court.17 Although states must ensure that an accused can participate in judicial processes in a language they understand, individuals cannot opt to speak in their mother tongue if they can understand and speak the official language.18 Overall, therefore, the right to speak a language is one of the most important rights for protecting minorities. The right has a particular relevance in an individual’s interaction with the administrative structures of a state and before national courts. The right to be educated in one’s mother tongue could extend to state support within the national education system. The 1919 Polish Minority Treaty, for example, provided that Polish minorities had the right to ‘establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein’.19 The right to establish and manage schools is ‘indispensable to enable the minority to enjoy the same treatment as the majority, not only in law but also in fact’.20 By way of alternative to maintaining their own educational institutions, 16. ICCPR art 14(3). 17. Ibid 14(3)(f); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 40(2)(vi). 18. Human Rights Committee, Communication No 219/1986, UN GAOR, 45th sess, UN Doc CCPR/C/39/D/219/1986 (23 August 1990) (‘Dominique Guesdon v France’). On the problems of court interpretation for minority language users in criminal proceedings, see Charles M Grabau and Llewellyn Joseph Gibbons, ‘Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation’ (1996) 30 New England Law Review 275. 19. Minorities Protection Treaty between the Principal Allied and Associated Powers and Poland, signed 28 June 1919, 225 CTS 412, art 8 ('Polish Minority Treaty'). 20. Minority Schools in Albania (Advisory Opinion) [1935] PCIJ (Ser A/B) No 64.

Court of Conscience

‘The right to speak a language is one of the most important rights for protecting minorities. The right has a particular relevance in an individual’s interaction with the administrative structures of a state and before national courts.’

103

Protecting Minority Languages Stephen Tully

104

Court of Conscience

minority languages could be taught in state schools, unless ‘national sovereignty’ is prejudiced or the minority is precluded from engaging with the community.21 It is therefore perplexing that international law does not generally recognise language rights per se. International law assumes that language, identity and culture are static, distinctive and internally consistent concepts.22 Language rights are not considered to be fundamental rights – the regime of international human rights is piecemeal, incoherent and non-binding.23 A treaty has been proposed to address those deficiencies.24 States may consider minority languages to be too politically volatile, with any associated rights giving too much international recognition to potentially seceding minorities. Protecting languages, if done properly, might also be prohibitively expensive. The linguistic human rights movement25 thus seeks to promote linguistic justice by strengthening institutional support for minority languages.26 However, as there is only so much that international law can achieve insofar as it reflects the will of incumbent states, it may be perceived to be unduly rigid and unreceptive to the concerns of minority groups. Why would international law shirk from the key issues? Language is an aspect of identity, whether as a minority group or nation state. Minority languages can be territorially located based on historical roots (eg, French in Quebec, Canada), relatively endangered (eg, indigenous languages) or associated with specific immigrant groups. But language is consistently portrayed only as a cultural right.27 This downplays the

political, economic and social dimensions of language. On one view, granting minority language rights furthers national peace by improving governmental relations with aggrieved minorities and encouraging solidarity. State support for diversity prevents multi-ethnic fragmentation and instability. On the other hand, nation building tends towards language convergence or assimilation and discourages linguistic diversity. The extent of minority language recognition is determined among other influences by the political power of a minority group relative to the state. Language rights may be just one aspect of a push by minorities for a recognition of cultural difference and autonomy which incumbent governments will resist. The political ramifications of bilingualism has proven to be a challenge,28 particularly for states such as Sri Lanka.29 National language policy can differentially affect the disempowered members of linguistic majorities.30 For democratic states, the challenge is to establish a basis where, within decisions made by the majority, minority groups can exercise their rights in regard to their unique language.31 A ‘balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position’.32 The Australian (state- and territory-based) human rights charters espouse the approach that: the minority right to a language is considered on par with minority rights to culture and religion; and the right to language falls under the broad rubric of cultural rights. For example, section

21. Convention Against Discrimination in Education, opened for signature 14 December 1960, 429 UNTS 93 (entered into force 22 May 1962) art 5(1)(c)(i). 22. Jacqueline Mowbray, ‘Ethnic Minorities and Language Rights: The State, Identity and Culture in International Legal Discourse in International Legal Discourse’ (2006) 6 Studies in Ethnicity and Nationalism 2, 21. 23. Robert Dunbar, ‘Minority Language Rights in International Law’ (2001) 50 International and Comparative Law Quarterly 90, 119. 24. Joseph P Gromacki, ‘The Protection of Language Rights in International Human Rights Law: A Proposed Draft Declaration of Linguistic Rights’ (1992) 32 Virginia Journal of International Law 515. 25. See Atsushi Ishida, Miya Yonetani and Kenji Kosaka, ‘Determinants of Linguistic Human Rights Movement’ (Paper presented at European Consortium for Political Research General Conference 2003, Philipps-Universität Marburg, 18–21 September 2003) <http://www.bib.uab.es/socials/exposicions/dretllengua/docs/ishida.pdf>. 26. Fernand de Varennes, Language, Minorities and Human Rights (Springer, 1996). 27. For example, states are encouraged to ‘adopt measures aimed at protecting and promoting the diversity of cultural expressions’ including language use: Convention on the

Protection and Promotion of the Diversity of Cultural Expressions, opened for signature 20 October 2005, 2440 UNTS 311 (entered into force 18 March 2007) art 6. 28. On classifying bilingual approaches, see Alan Patten, ‘What Kind of Bilingualism?’ in Will Kymlicka and Alan Patten (eds) Language Rights and Political Theory (Oxford University Press, 2003) 296. 29. See Sadhana Abayasekara, ‘A Dog Without a Bark: A Critical Assessment of the International Law on Language Rights’ (2010) 17 Australian International Law Journal 89; Richard W Bailey, ‘Majority Language, Minority Misery: The Case of Sri Lanka’ in Douglas A Kibbee (ed) Language Legislation and Linguistic Rights (John Benjamins Publishing Company, 1998) 206. 30. Janina Brutt-Griffler, ‘Class, Ethnicity, and Language Rights: An Analysis of British Colonial Policy in Lesotho and Sri Lanka and Some Implications for Language Policy’ (2002) 1 Journal of Language, Identity, and Education 207, 225. 31. Bertus de Villiers, ‘Language, Cultural and Religious Minorities: What and Who Are They?’ (2012) 36(1) University of Western Australia Law Review 92, 113. 32. Gorzelik v Poland (European Court of Human Rights, Grand Chamber, Application No 44158/98, 17 February 2004) [90].

105

Protecting Minority Languages Stephen Tully

106

19(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) relevantly provides that ‘all persons with a particular … linguistic background must not be denied the right, in community with other persons of that background … to use his or her language’.33 Aboriginal persons holding ‘distinct cultural rights must not be denied the right, with other members of their community … to maintain and use their language.34 To similar effect – but with subtly different nuances – section 27(1) of the Human Rights Act 2004 (ACT) relevantly provides that ‘[a]nyone who belongs to … [a] linguistic minority must not be denied the right, with other members of the minority … to use his or her language’.35 Aboriginal and Torres Strait Islander peoples ‘hold distinct cultural rights and must not be denied the right to … maintain, control, protect and develop … their languages and knowledge’.36 The practical upshot of all these concepts and approaches for individuals under Australian law can be briefly illustrated. Over 2007 and 2008, the Church of Jesus Christ of Latter-Day Saints Australia (‘the Church’) discontinued Samoan-speaking wards. This meant that the appellants were unable to publicly worship (including in prayer and song) as a group in their native Samoan language in services conducted by the Church. They contended that the decision to exclusively use the English language was unlawful under the Racial Discrimination Act 1975 (Cth). The primary judge held that there was no interference with the right to freely practice their religion. Furthermore, the appellants’ desire to have Church services conducted in their native Samoan language had to be balanced against the rights of those who did not understand the language in order to worship. An appeal was dismissed.37 The appellants invoked the Minority Rights Declaration as well as commentary from the working group on minorities. Kenny J (with whom Greenwood and Logan JJ agreed) accepted that the Declaration elaborated on article 27 of the ICCPR but neither it nor article 27 assisted the appellants’ case.38 Article 27 did not give 33. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 19(1). 34. Ibid s 19(2)(b). 35. Human Rights Act 2004 (ACT) s 27(1). A note to section 8 identifies discrimination by reason of language as an example of a basis of discrimination prohibited under Human Rights Act 2004 (ACT) s 8(3). 36. Ibid s 27(2)(a)(ii). 37. Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia (2014) 221 FCR 86 (‘Iliafi’). 38. Ibid 107 [69].

Court of Conscience

rise to a right for the appellants to use their native language when they worshipped publicly as a group in the Church’s services.39 The minority language rights protected under article 27 had not been impaired because the appellants were free to use their native language amongst themselves; the ban was on them using their native language to worship in community with Samoan and non-Samoan speaking persons. The appellants erred insofar as the language right in article 27 was being treated as if it merged with the right to freedom of expression.40 Additionally noteworthy – and recognised in international human rights jurisprudence – is that article 27, unlike article 19, on freedom of expression, has much clearer collective undertones, so that article 27 should probably suggest using language in public contexts. Furthermore, article 27 had to be exercised consistently with other provisions.41 This included the right to freedom of religion being exercised by the Church on behalf of its adherents, including its ability to enforce unanimity in religious matters. The Federal Court of Australia cited the Human Rights Committee for the proposition that some restrictions on using a minority language were permissible.42 In particular, a challenged restriction had to have an impact ‘so substantial’ that it effectively denied to a complainant the right to enjoy his or her cultural rights.43 The Federal Court ultimately concluded that the rights to freedom of religion, freedom of expression and nationality did not protect the appellants’ ability to worship publicly as a group in the Samoan language in the Church’s services.44 No language or other right in article 27 of the ICCPR remedied the deficiency. Thus the appellants failed to establish the existence of a right which engaged the Racial Discrimination Act 1975 (Cth).45 International law fails to adequately protect the right of minority groups to use their own language. Key concepts are undefined and non39. Ibid 113–115 [95]–[103]. 40. Ibid 114 [98]. 41. Ibid 114 [99]. 42. Ibid 112 [92]. 43. Human Rights Committee, Communication No 1334/04, UN Doc CCPR/ C/95/D/1334/2004 (19 March 2009) [8.7] (‘Mavlonov and Sa’Di v Uzbekistan’). In that communication, denying re-registration to a minority language newspaper established a violation of article 27 because ‘the use of a minority language press as means of airing issues of significance and importance to the Tajik minority community in Uzbekistan, by both editors and readers, is an essential element of the Tajik minority culture’: at [8.7]. 44. Iliafi 115 [103]. 45. Ibid 117 [110]–[112].

107

Protecting Minority Languages Stephen Tully

blinding instruments overutilised. The cultural aspects of this right are emphasised and the political dimension subverted. Some of the defects observable at the international level concerning the ambit of this right have been transposed into Australian law. Complainants may be unable to find any support in Australian law upon which to articulate their particular grievance. A dialogue to remedy these deficiencies must begin, but who will listen?

108

COVER

Miri Badger