2013 The Full Bench Ed 2

THE MELTING POT: CULTURE AND THE LAW Issue 02 2013 UTS Law Students’ Society 20

Female genital mutilation

What do we do when culture and human rights abuses collide?

22

Art versus child pornography

The grey area where artistic culture and the law resides 28

Sky-high hurdles

Why new laws are not helping Indigenous offenders in the Kimberley 32

Provoking the (not so) ordinary person Should a cultural legal defence exist?

34

Q&A

With Maree Jennings on Indigenous justice 39

Verbatim

Law School Horoscopes

CREDITS

tfb 2013 [Issue 02]

the full bench

Editors Michelle Smerdon (LSS Publications Director) Lauren Fitzpatrick Joanna Mooney Francesca Elias Arciuli

Designer Hamish Burrell © UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers.

Disclaimer All expressions of opinion published in the TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. .

LSS Vice President (Education) Kate Taylor

Marketing Anita Juric

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With Thanks To Daniel Mckenzie and co.

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The Full Bench

Contents

Contents

04 06 08 11

Editorial, President & VPE Addresses Editors’ Question

In 10 words or less

Royal Commission into Child Sexual Abuse

13

Letter to the Editors

Culture in the 21st Century

Angelo Bistolaridis

A legal ‘cut and paste’

IOU ICIP

Un-Convention-al approaches Domestic violence refugees

Joseph Lavelle Wilson

20

How television affects our perception of law & order

28

Sky-high hurdles

31

Opinion:

32

Provoking the (not so) ordinary person

Aboriginal offenders in the Kimberley

Phoebe Riordan

A dynamic view of culture

Kate Taylor

Should a cultural defence to murder exist?

Sage Nemra

34

Q&A: Maree Jennings

36

Review:

38

Debate: ‘Stop. Hammer Time.’

39

Verbatim:

Indigenous rights to intellectual property

Azal Khan

Pop culture: Your right to be informed Bianca Xerri

Transplanting Western legal principles into Asian nations

Lauren Fong

18

24

Obiter

Opinion:

16

Art versus child pornography

Nesha Jeyalingam

12

14

22

Where should the line be drawn?

Indigenous Justice

Francesca Elias Arciuli

Speaker Series: Indigenous Justice

Lachlan Ball

Should culture affects an offender’s sentence?

Christopher Lisica & Stefanie Costi

Law School Horoscopes

Female genital mutilation Human rights versus cultural relativism

Sefakor Dokli

The Full Bench

EDITORIAL AND UTS LSS WELCOME

Editorial 83% - the percentage of the prison population in the Northern Territory that is Indigenous. $630 - the daily cost to keep a young Aboriginal person in juvenile detention. $271 - the price for an Executive Room at the Hilton in Sydney, including buffet breakfast.

Far be it for us to say that all Indigenous offenders should be put up in rooms at the Hilton, but something about these statistics doesn’t sit right. The laws of our time are purported to mirror the nation’s values, and stand as a pillar of justice. So why, in the face of the law, do Indigenous Australians face more roadblocks than give way signs? In fact, the Australian Indigenous peoples and cultures are part of the world’s longest continuing tradition and it appears this tradition is largely absent from our Westernised legal framework.

It was Paul Keating in 1993 who progressively declared that culture would only be embraced in an act of recognition.

“Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practiced discrimination and exclusion.”

In our view, it cannot be said that this recognition has eventuated. The pivotal issue of whether there is a meeting of the minds where culture and the law is concerned is explored in following pages.

As you indulge in this edition of TFB, you will come across Sage Nemra who questions if culture can and should be used as a defence to a crime, and Sefakor Dokli who touches upon the delicate

4

topic of female genital mutilation – where the clash between culture and human rights is all too rife and you’ll hear from our readers in our ‘in 10 words or less’ segment, which explores the voices of victims in the Royal Commission into Child Sex Abuse.

So why should you care? The cultural makeup of Australia shapes who we are as people, and how we adapt to different experiences. Inevitably, changes in culture will shape our future. It is time we opened our eyes to different cultures in an act of recognition that has been long called for.

Happy reading!

Love The Full Bench editorial team Michelle Smerdon, Lauren Fitzpatrick, Joanna Mooney & Francesca Elias Arciuli

From the LSS President Dear Students, Welcome to the second edition of The Full Bench (TFB) for 2013.

The fabulous editors of the second edition of TFB have composed it with a focus on culture and the law. The controversial legal issues that are discussed are diverse and include those surrounding the conflict of artistic culture and law, the perceptions of aboriginal law and intellectual property, and the plight of refugees fleeing due to domestic violence.

I hope this edition provides you with an opportunity to expand your views on the way in which law and culture shape society as a whole. The interplay of the legal system and culture in the community enhances the way in which law and justice is viewed in a number of jurisdictions, as well as the potential conflict that may arise as a result.

I wish you all the best of luck as we move into the latter half of semester and

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UTS LSS WELCOME

The Contributors:

examinations begin.

As always, should you have any questions or queries about any

Thank you all for providing an insight into the

aspect of the UTS Law Students’ Society (the ‘UTS LSS’), please do not

controversial legal issues that surround society.

hesitate to contact me at president@utslss.com.

for the phenomenal publication produced. The extensive level of work

Our Sponsors for their continued support and commitment to the UTS LSS:

and organisation that has been put into this journal is spectacular. Thank

•

Henry Davis York;

you to Kate Taylor, Vice President (Education) for her support, superior

•

Clayton Utz;

organisational skills and guidance.

•

Corrs Chambers Westgarth; and

•

Gilbert & Tobin.

A big thank you to Michelle Smerdon, the Publications Director 2013

Thank you to...

The Editors: •

Michelle Smerdon;

•

Lauren Fitzpatrick;

•

Francesca Elias Arciuli; and

•

Joanna Mooney.

Kind regards Katherine Agapitos LSS President

From the Vice President (Education) There is a government fact sheet that heralds Australia’s diversity; it proudly states that we are made up of people from 270 different nations including our Indigenous population, practice every known

5

religion, have a large and active gay, lesbian, bisexual and transgender community and are bridging the gap of gender inequality.

But it is not so harmonious in reality. You will easily recall the Cronulla Riots and the wave of crimes against people of Indian descent .You may

as cultural attitudes are influential upon the law. As you

have seen the ill-informed Facebook groups calling for the burqa to be

move through this edition of The Full Bench, I urge you to

banned. You would be aware that same-sex marriage is still a distant

think about this interplay, and what impact you might be

dream, maybe that the gender pay gap still sits above 15% and that

able to have in either capacity.

Indigenous peoples experience dramatically lower life expectancies and higher incarceration rates.

As always, my sincerest thanks goes to the incredible editorial team led by Michelle Smerdon, which includes

Why in a nation of such diversity do these incidents and trends continue?

Joanna Mooney, Lauren Fitzpatrick and Francesca Elias Arciuli. They are brilliant, there is no other way to put it.

One answer to this question is the law; more specifically the interplay of culture and the law. It has been argued that while the demographics

Best wishes

of the population change at unprecedented speeds, the composition

Kate Taylor

of the judiciary and legislature do not. It is then said that this has led

LSS Vice President (Education)

to many rights and protections not being implemented until very late in the piece, the shadows of which see levels of discrimination and disadvantage persist.

Whether you agree with the above sentiment or not, it is unmistakable that the law is pivotal

f

To stay up to date with The Full Bench news, remember to like us on Facebook:

https://www.facebook.com/utsthefullbench2012 and if you’re interested in contributing or want to give us some feedback, be sure to email publications@utslss.com.

in influencing cultural attitudes, just

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EDITORS’ QUESTION

Editors’ Question Should polygamous marriage be allowed under the law?

6

Michelle says:

Kate says:

Notwithstanding divorce and

It’s amazing how one can

the potential future as a cat lady,

immediately oppose something

I hope that in the future I will only

just because it is beyond the

stand in a white dress before one

realm of our experiences. I

person and declare that I will love

certainly did when facing this

that one person for better or worse,

question.

for richer or poorer, in sickness

As a female in modern

and in health. The idea of multiple

society, who values education

husbands (while tempting – multiple skills, multiple salaries…)

and independence, it doesn’t feel intuitive to support

or multiple wives is adverse to the very notion of love in Western

women who choose lifestyles that seem somewhat sexist

society.

and out dated. But it would be wrong to label them as

We are taught from a young age that cheating is bad, and

victims without considering the possibility that some of

monogamy is good. A relationship is built on trust, commitment

them have simply made a different choice to what I have

and mutual understanding. In the Western world, this translates

made.

to a marriage between two people, a world where polygamy

It is really hard to reason that at law there should be a

is synonymous with adultery. This is manifested in our legal

division drawn between a union between two consenting

system, where polygamous marriages are not allowed under

adults and an arrangement between three or four

any circumstances.

consenting adults. Although in the same vain, I would make

However, this somewhat constricted Western view fails to take account of cultural freedoms and rights. In instances

the same argument in favour of same sex marriage – which is the issue of equality we must tackle first.

where polygamy is motivated by religious faith, such as

As Jillian Keenan put so nicely, “though polygamists

fundamentalist Mormonism or Islam, is it our place to argue

are a minority—a tiny minority, in fact—freedom has no

that pluralist marriages are not built upon trust, commitment

value unless it extends to even the smallest and most

and mutual understanding? In these religions, polygamy is not

marginalized groups among us. So let’s fight for marriage

adultery, it is instead seen as a divinely sanctioned union.

equality until it extends to every same-sex couple…and

In instances where culture dictates that polygamy is the

then let’s keep fighting.”

norm and where parties are legally able to sign marriage contracts, there is no reason why these people should not be allowed to express their faith through their marriage. In

Joanna says:

Australia, if culture dictates that a woman wants to marry a man

The

with three other wives, then that should be her damn choice.

in Australia provided by the

definition

of

marriage

Marriage Act 1961 (Cth) has often been called into question. This is unsurprising given the changing social norms in Australian society, as well as the interaction between these

social

norms

multicultural society that is modern day Australia.

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and

the

EDITORS’ QUESTION

A number of religious and cultural practices support

less than their male counterparts. Greg Strauss points out that

polygamous marriage, mostly with men being allowed to

“women and children in polygamous families are less happy

take multiple wives. Arguments in favour of polygamous

and suffer higher rates of emotional and physical abuse,” and

marriage, such as monogamy is not for everyone so why

leads us to question whether any woman genuinely consents to

live a lie in relationships, or that it provides equality for

polygamous marriages: “Because what rational woman would

illegitimate wives, are somewhat persuasive, if not amusing.

voluntarily choose this oppressive lifestyle unless she was

Yet, I for one am not convinced. For one thing, where

taught women are naturally inferior?”

would you draw the line? If the definition of marriage were to read, “to the exclusion of all others, except where cultural or religious practices dictate,” this would discriminate

Francesca says:

against others who wish to enter into polygamous

My

marriages despite not being part of a particular cultural

question

group. This would be creating an unusual situation where

‘No.’ How could Australia allow

the law was specific only to those of certain cultures and

polygamous marriage given the

religions.

plethora of ensuing socio-legal

Furthermore, there are many things that we once

initial

response was

a

to

this

resounding

issues?

thought were acceptable - slavery, rape in marriage, it being

Legal issues could arise in

illegal to be homosexual - which are now part of society’s

succession matters. In cases of

shameful past. Given that mainstream Mormon Church,

divorce, would the other spouses who are not the biological

once notorious for polygamy, has banned polygamy more

parents of a child be legally excluded from maintaining a

than 100 years ago, maybe this is not something we would

relationship with them? Further, with Australia being rated as

want to legislate for in any case.

one of the most expensive countries to live in by Deutsche Bank, many already struggle to support one marriage or family, let alone multiple.

Lauren says:

Yet, is this being too contemptuous of polygamous

Polygamy is defined as

marriage?

“the condition or practice

The Australian Law Reform Commission in its 1986 Report

of having more than one

on the Recognition of Aboriginal Customary Laws proposed

spouse

that traditional polygamous marriages should be recognised

Focusing

at on

one

time”.

Islamic

or

for specific purposes.

sharia law, men may have up

If Sister Wives has taught me anything, it is that we can’t

to four wives while women

be too quick to judge the love of others. Perhaps it is time for

may only have one husband.

Australians to look, and not just overlook, this issue and gauge

Despite the fact that these multiple wives and their

whether it would be so injurious to the public to warrant its

children must be treated equally, polygamous marriage

dismissal.

is discriminatory, violating the International Covenant on

However, I ultimately believe that if Australia really wants to

Civil and Political Rights. Article 3 guarantees equal civil

reform the institution of marriage it would be more appropriate

and political rights for women and men, of which Australia

to consider the issue at the forefront of the agenda – specifically,

became a signatory in 1972, and ratified in 1980.

gay marriage – and transform the overwhelming support for

While it’s arguable that polygamous marriages may be morally acceptable between consenting adults, polygamy

this reform into law before confronting an issue which is not, in my opinion, of as great a concern.

under sharia law objectifies women as a display of manhood, and resultantly portrays women as being worth

The Full Bench

7

OBITER

Obiter

By Sharin Ahmed

“Currently a clear line does not exist between child pornography and art - a situation that is not ideal for the public or the artistic community.”

130 million girls are estimated to have undergone female genital mutilation in Africa or the Middle East - Unicef, 2005

- The Hon. John Hatzistergos, former NSW AttorneyGeneral

48%

“If it was a business and the business had four partners, we’d recognise that, but why don’t we recognise it when it comes to consensual relationships among adults?”

the rise of Indigenous imprisonment rate in NSW

- Anonymous residing in Sydney Western Suburbs on polygamous marriages

between 2001 and 2008 - Creative Spirits, Aboriginal Law and Justice

3000 Special Humanitarian Program visas were granted to refugees suffering human rights abuses in 2011 (out of

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‘’We have no cultural traditions based on humiliation, degradation and violation . . .

Most of the violence, if not all, that our brittle communities are experiencing today [is] not part of Aboriginal tradition or culture.’’

25,000 applications) - Parliament of Australia Report 2011

¼ of Australian residents were born outside of Australia

- Mick Dodson, Indigenous Australian leader

- Australian Government 2013

“People will change their behaviour when they understand the hazards and indignity of harmful practices and when they realize that it is possible to give up harmful practices without giving up meaningful aspects of their culture.”

14%

— Female Genital Mutilation, A joint WHO/UNICEF/

- Australian Government Department of Immigration

UNFPA statement, 1997

and Citizenship, 2013

of Australians speak a language other than English at home

“The show gives the viewing public the sense that the government is effectively and fairly administering border security policy.”

- Bob Burton, writer of Inside Spin: The Dark Underbelly of the PR Industry, expressing concern over postproduction editing

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IN 10 WORDS OR LESS

In 10 words or less Voices of victims: The Royal Commission into child sex abuse

We thought we’d ask our readers what they thought of the Royal Commission in ten words or less.

Here’s what they had to say:

By Martha Crnkovic

The Royal Commission: Relaying accounts of

“What a difficult and painful job for all parties.”

– Hannah Rumble

unfathomable abuse 5,000 adults. Not long ago, they were 5,000 children. From

“About time.”

Wednesday, 3 April 2013, by government mandate, 5,000 voices

– Emma Bechara

will have one hour to tell a story in the first Royal Commission into institutionalised child sex abuse. In unprecedented private sessions, 5,000 individuals will have one hour at a time to aspirate

“The enquiry is too broad. It will never end.”

– Christian McMahon

damage of the deepest and most intimate quality. For one hour, they will sit in the wood-paneled courtroom of the Victorian Country Court before a judge, an ex-senator, ex-police chief or an

“Trauma overflows the law: Truth tribunals admit justice, dignity, understanding.”

appointed psychiatrist, and relay accounts of unfathomable abuse:

– Martha Crnkovic

they will speak of voyeurism, exhibitionism, tortuous exposure, vulnerability, pornography, and the disintegration of the self under the shadow of their perpetrators. No prosecution. No testimony.

“The Commission and the clergy should choose to cherish children.”

Six Commissioners will listen to these stories as solemn witnesses

– Nathalie Jones

whom, just like any of us, are fraught to comprehend the complexity, opacity, and inconceivable prevalence of child sex abuse within our

“Too little too late.”

most hallowed institutions: institutions of social care, education, and

– Ashleigh Barnes

religious observance.

Questions need to be raised. What exactly is the purpose of this

“Well-intentioned but can justice ever be achieved?”

Commission’s inquiry? Is the Commission orienting itself as a quasi-

– Nesha Jeyalingam

truth tribunal? Or is the Royal inquiry strictly a fact-finding body affecting concrete legislative changes? Questions of legal process

“Finally prepared to face the truth.”

and procedure, government funding, and political salience are

– Sarah Smith

important. Nevertheless, for me, when the stories begin, those are likely to be the kind of questions that fall silent to greater questions;

“Much needed. Long overdue.”

questions forged from a longing to understand the humanity

– Ryan Diefenbach

beneath the politically, morally, and socially charged indictment: ‘child abuse’. I want to know what will happen in that room. Therapy?

“Such a sensitive issue, but scrutiny is long overdue.”

Catharsis? Justice? What would have had to happen to you for you

– Jamesina McLeod

to be in this room? What have you heard? What is your story?

Did you enjoy this segment and want to

“Hopefully this will lead to justice being served.”

– Cindy Lam

contribute to our next ‘In 10 words or less’? Email publications@utslss.com for our next conversation topic.

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11

OPINION: CULTURE IN THE 21ST CENTURY

Opinion: Culture in the 21st Century Anas b. Malik reported that Allah’s Apostle (may peace be upon him) gave a beating with palm branches and shoes, and that Abu Bakr gave forty lashes. When Umar (became the Commander of the Faithful) and the people went near to pastures and towns, he said (to the Companions of the Holy Prophet). What is your opinion about lashing for drinking? Thereupon Abd al-Rahman b. Auf said: My opinion is that you fix it as the mildest punishment. Then ‘Umar inflicted eighty stripes.

Angelo Bistolaridis explores why some cultural practices are rejected under the law, and some have become so ingrained into society that they are unquestionably accepted. against corporal punishments. As recent as 20 years ago, the cane was still used as a common punishment in our public schools. Our society’s past has been witness to public floggings and hangings – and these existed long

Sahih Muslim, Book 17 ‘Punishments prescribed by Islam’, ‘prescribed punishments for (drinking) wine’ Hadith 4228

before our first mosques were established. However, as time has gone by, so have the days where it was acceptable to publically belt a screaming child after they have thrown

On 16 July 2011 Mr Cristian Martinez, a convert to Islam, was shown the frozen peas in the cold food aisle at Coles. hard way what would happen if he defied Sharia law. Mr Martinez, in a plea

The Courts have shown a clear intention that they

to stop abusing drugs and alcohol, turned to fellow Muslim parishioners will not be willing to allow cultural defences to alleviate a

12

for assistance. Three men; Mr Fayad, Mr Cifki and Mr Coskun went to Mr defendant’s liability in an extreme case of violent assault, Martinez’s house and lashed him 40 times by electrical cords as per (it where consent was not provided. However, there are would appear) their understanding of the above Hadith.

other religious practices and exercises to which we seem

The men, in an unprecedented move, came before the Court, charged desensitised and which have managed to escape any with assault.

questioning or critique, since these practices have become

“Until now, assaults occasioned in the course of religious practice so ingrained into our society. involving the mortification of the flesh have not been before any court in any common law country,” Justice Maloney stated.

For example, circumcision has been practised for centuries and little has changed in this procedure aside

His Honour Maloney found that consent was withdrawn at some point from the surgical tools or methods used in the procedure. after the 21st lash, and stated “such incidents should not be tolerated This practice has become culturally accepted, even by the courts (and) the common law provides the best deterrent against though, when contemplating the action outside a religious them.”

realm, it can seem out of place in a society that frowns

Interestingly, in no way did the Australian Islamic community sanction upon mothers that smack their children. In society today, this religious action. In fact, Sheikh Omar El Banna (the Sheikh of the the choice to circumcise has become so ingrained that it Omar Mosque at Auburn) labelled this punishment “ridiculous” and is not always a cultural one, and the procedure is generally condemned it.

very safe and causes little if any negative effects on the

However, that’s not to say that this practice isn’t religiously sanctioned patient. It appears that this once very traditional cultural in other parts of the world – just try swigging a glass of Jack Daniels custom has become, for many, a routine practice, and the and coke in Saudi Arabia or parts of Nigeria where Shari’a’s Hadud safety of the procedure has been ensured. punishments are administered under state-supervised and professionally trained Qadis.

However, in some communities where traditional cultural practices of circumcision still occur, some children

However, there is a clear reason why these punishments are not have been negatively affected. In New York, 13 babies from tolerated in Australia – it is because they are seen to abuse human the Ultra-Orthodox Jewish community have contracted rights. It is important to remember that Australia has not always been herpes-related diseases following circumcision since the

The Full Bench

OPINION: CULTURE IN THE 21ST CENTURY AND letter to the editors year 2000; two of the babies later died, and two have suffered brain-

Australia for female genital mutilation and yet when a similar

damage. How? Because the mohels that practice this procedure

practice is allowed on a male infant it is accepted. It is clear that

in these communities are required to seal the infants’ wound with

we cannot underestimate the effects of years of conditioning

their mouth – an unclean mohel can leave a child fighting for its life.

on our societal views.

The fact that these practices still occur is questionable – but where

It is clear that some passages of faith have become so

do we draw the line between turning a blind eye under the law to

entrenched into society that they have become culturally

cultural practices between consenting individuals and condemning

accepted. While the line between culture and the law is grey,

those who are merely adhering to the rituals of their faith?

it appears that the Australian Courts are unwilling to accept

While our society has made that clear that female circumcision

culture as a defence in instances where cultural actions have

is a brutal crime, why is male circumcision afforded protection

not been accepted by society, are an abuse of human rights,

under the law? You will recall a nurse was charged late last year in

and are clearly against public interest.

Letter to the Editors Do you have comments about edition two or want to share your views? Send a letter (via email) to the editors to publications@utslss.com - we’d love to hear from you!

Dear Editors

13

The previous edition of The Full Bench presented a number of views on euthanasia, which were all very supportive. There are, however, a number of problems with euthanasia that weren’t raised. While to comprehensively cover the topic would take pages, I’d like to bring to the ‘bench’ at least a few ideas to consider.

viate pain, while conveying a sense that although a terminally ill patient is almost entirely inhibited and dependent, they have an inherent dignity found in their personality, the whole of their life and what they

A common position is that a dignified death is one in which a suffering, terminally ill person is able to choose the time, place and manner of their death. To go ‘on their own terms’ so to speak. However, this is to say that a person’s dignity is derived from their ability to make free decisions.

Such an approach is problematic because of the message it sends to those who may not have the capacity to make free and rational choices: children, the mentally ill and those who are disabled by disease, age or physical condition, for example. Such people have an inherent dignity

have done, and the fact that they are loved, cared for, and shown every physical and moral support possible. Such an approach conveys a sense of dignity to a dying person where that person might fail to, or be incapable of, recognising their own dignity. It says that despite the severe limitations they may experience, their life still has meaning and worth which is inherent.

despite the fact that they may be unable to make any genuine choices at all. Accepting that a dignified death is one in which the dying choose to end their life is to accept that their ability to choose confers dignity, and without it they will not possess dignity.

As for democracy, a 2010 Nielsen Poll also showed that 76% of Australians support euthanasia. However, this same poll showed that the greatest resistance came from those aged 65-74, of which only 18% ap-

Further, pain is subjective. It cannot be measured by anyone other than the sufferer. Is it possible to legislate a threshold of ‘unbearable’?

Who is meant to determine this? And how can it possibly be proven that a person is in unbearable pain? Does ‘pain’ only include physical pain or should moral pain also be included? Perhaps the pain of losing a loved

proved of euthanasia. Those who are at greatest risk of becoming incapacitated, becoming vulnerable and losing their ability to make rational choices, are those most against it. What kind of message would legalising euthanasia send to these people?

one could be unbearable and unceasing pain?

Palliative care at its best will be able to effectively manage and alle-

Joseph Watson

The Full Bench

TRANSPLANTING WESTERN LEGAL PRINCIPLES INTO ASIAN NATIONS

A legal ‘Cut and Paste’ Transplanting Western legal principles into Asian nations

By Lauren Fong

cultures, between the donor and recipient nation.5 In the modern epoch, where the rapid

onslaught

of

globalisation

has

encouraged

a growing trend towards a more unified and internationally standardised set of rules and regulations, this concept has become even more relevant. This has in turn given rise to questions

Photo- James Mutter

14

In an increasingly globalised world it is not uncommon for one country to implant its laws upon another. Lauren Fong explores the concept of legal transplanting, and examines its successes and failures in the case of IP laws in China, questioning whether it is in fact a dangerous procedure.

regarding the efficacy of legal transplantation, and

its

influence

upon

the

development

of a homogenised legal and value system.

The transplant - Western IP laws in China Intellectual property (IP) may be defined as the rights, or bundle of rights, which attach themselves to creative effort.6 The historical foundations of IP can be traced back to the fifteenth century in Europe, where the development of the printing press prompted a need to protect individual works. However, whilst this legal concept has found traction in the West, for hundreds of years

The success of a live organ transplant can only ever be judged in two

certain social and cultural values have hampered

ways: either the body accepts the foreign addition to its system, or it does

its acceptance in the East. In China, the concept

not. However, the success of a legal transplant offers far less clarity.

of intellectual property was first introduced in the

The surgical procedure

early twentieth century when the United States

Legal transplantation refers to legal principles being transposed upon

and the United Kingdom compelled the Qing

1

a foreign jurisdiction, often referred to as legal borrowing. Such legal

Government to enter into a series of unequal

borrowing has occurred throughout history, with the official law of conquerors

treaties that propounded the individual ownership

and colonisers typically overwhelming or subsuming pre-existing cultural

of creative works. 7

rules and regulations.2 French philosopher Baron Montesquie, writing in

The

underlying

policy

of

IP

laws

sits

the 1700s, famously stated that “laws expressed the spirit of nations and

uncomfortably with the pervading collectivist

were consequently deeply embedded in, and were inseparable from, their

mindset of the traditional Chinese people, who

3

geographic, customary and political context”. Montesquie believed that

believe that intellectual innovation comes from

foreign laws would be incapable of operating alongside local manners and

a repository of knowledge belonging to all

customs. However, it has since been contended that there are degrees of

members of society.8 This cultural psyche finds

transferability and effectiveness.4

its roots in Confucianism, the non-theistic ethical

Writing two centuries after Montesquie, a professor of comparative

and philosophical ideology that has underpinned

law at Oxford University, Otto Kahn-Freund, suggested that transplanted

Chinese moral awareness for thousands of

laws could improve legal frameworks. However, he noted that the

years.9 Its core principles, ren (humanity, kind-

integration of foreign laws would be more successful where there was a

heartedness), li (propriety) and xin (honesty

greater congruence of ideologies, institutional frameworks, and political

in relationships), have traditionally prioritised

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TRANSPLANTING WESTERN LEGAL PRINCIPLES INTO ASIAN NATIONS

communal harmony over individual rights.

economic reforms of 1978, China’s desire

laws have steadily gained acceptance

This distinct cultural context, much at

to operate within the global market has

within society, bringing China in line

odds with the normative individualism

been the impetus for their changing

with

12

of the West, continues to undermine the

attitude towards IP rights.

efficiency of the IP framework in China.

government

has

The Chinese

evidenced

a

taken their toll upon China’s uniquely

protection of IP rights, and has used its

collectivist

highly centralised system of government to

this compromise in values perhaps

implement a comprehensive IP framework

suggesting a superiority of Western

to encourage innovation, and stymie its

legal principles and ideologies. This

13

thus raises the inevitable question: will

a

enforcement. From October 2010 to June

domestic lawmakers when seeking to

2011, China engaged in a nine-month

retain their cultural identity? 17

significant

challenge

for

future

special campaign to eradicate intellectual

Cumulatively,

In 2004, the US Trade Representative

to undermine 156 thousand cases of IP

accused China of promoting blatant IP

infringement, involving 3.43 billion Yuan

rights

and destroyed 9, 135 illicit lairs.14

“maintaining

the

operation

managed 1.

2.

3.

import and distribution restrictions over

In 2010, China was listed as one of

legitimate foreign products, and thereby

the most active countries in terms of

4.

5.

providing incentives for the expansion of

global patenting activity and in 2011, the

6.

the counterfeit market within its borders”.10

Commissioner of the State Intellectual

attempt

Property Office, Tian Lipu, stated, “the

to transplant IP laws into China, the

Party [sought to make an] overall program

prevalence

goods

to promote intellectual property progress

remains. The value of seized counterfeit

at a national level”.15 Thus, the importance

goods rose by over 360%, from US$40.6

of IP within the Chinese market, and its

million in 1995 to US$187.3 million in

appeal to other countries, is reflected by

2011, due to higher rates of foreign

the fact that China also plays host to the

investment and a greater access to foreign

world’s largest trademark office. 16

the

counterfeiting

11

technologies, trademarks, and products.

These successes reflect the efficacy of the

Such

evidence

legal transplantation of Western IP laws

suggests that legal transplantation in

into the Chinese legal system, as they

China has been ineffective, with the

have provided a source of development

discord between the black letter law and

for China’s protection of IP rights and

cultural values undermining compliance.

burgeoning

damning

with

ongoing legal transplantation present

met with scathing criticism from the West.

of

conscious,

has sought to prove its commitment to IP

sale of counterfeit goods across the nation.

despite

social

Furthermore, the Chinese government

transplanted into China has often been

Therefore,

innovativeness.

commitment to the engenderment and

property infringement, manufacture, and

by,

internal

and

However, such improvements have

Indeed, the inefficiency of the IP laws

infringements

improving

standards

strong

long-held reputation as a copier.

Rejecting the organ

international

statistical

culture

of

7.

8.

9.

10.

11.

12.

13.

14.

innovation.

15.

Signs of life - accepting the organ

A threat from the new organ?

However, such a finding is predicated upon

When considering the success of legal

a belief that societal values are fixed and

transplantation in China, it can appear

remain uninfluenced by external pressures,

difficult to determine whether the body has

which is empirically untrue. Since the

accepted the organ or not. IP rights and

The Full Bench

16.

17.

Alan Watson, Legal Transplants (1st ed, 1974), 18.

Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30:375 Sydney Law Review 400.

John Gillespie, ‘Globalisation and Legal Transplantation: Lessons from the Past [2001] 15 Deakin Law Review 6(2) 286.

Ibid 269.

Otto Kahn-Freund, General Problems of Private International Law (1st ed, 1980), 32-49.

Andrew Phillip, Phillip Griffith & Judith Bannister, ‘An Overview’ in Intellectual Property in Australia (2010) 3,3.

Handong Wu, ‘Intellectual Property Law as China Moves Toward an Innovation-oriented Society’, in China’s Journey toward the Rule of Law (2010) 439, 46. This included the Treaty of 1901 stipulating that the Qing Government was to separately negotiate and enter into commercial treaties with the US and England.

Demin Lui, ‘Now the Wolf has Indeed Come! Perspective on the Patent Protection of Biotechnology Inventions in China’ (2005) 53 American Journal of Comparative Law 207, 263.

Tim Ambler, Morgen Witzel & Chao Xi, ‘Relationships and Regulations’ in Doing Business in China (2008) 95, 96.

United States Trade Representative, 2006 Report to Congress on China’s WTO Compliance, 11 December 2006, 78.

Office of the United States Trade Representative, China (2012) [4 – 7] <http://www.ustr.gov/countries-regions/china> at 12 October 2012.

Kong Qingjiang, WTO, Internationalization and the Intellectual Property Rights Regime in China (1st ed, 2005), 18. Regulations on the Implementation of International Copyright Treaties in 1992. On September 1, 199, China acceded to the Madrid Protocol on the Protection of Trade Marks’ Ibid 66.

Intellectual Property Protection in China, China has been going through the best development period of intellectual property protection (2012) <http:// www.chinaipr.gov.cn/newsarticle/news/government/201211/1713199_1.html> Dingjan Cai, China’s journey towards the rule of law: Legal reform 1978-2008 (2nd ed, 2010), 454 – 459.

World Intellectual Property Organisation, China’s IP Journey (2010) <http://www.wipo.int/wipo_magazine/en/2010/06/article_0010.html> Jamila Hussain, ‘More Than One Law for All: Legal Pluralism in Southeast Asia’ (2011) 7(4) Democracy and Security 384, 384-385. This might be performed effectively through a workable system of legal pluralism, wherein multiple legal systems co-exist within the same domestic framework.

15

INDIGENOUS INTELLECTUAL PROPERTY

IOU ICIP

Indigenous rights to intellectual property

By Azal Khan Past and present, Indigenous Intellectual and Cultural Property (ICIP) rights have not been adequately protected, resulting in the ongoing erosion of the Indigenous culture.

Azal Khan examines why Australia owes ICIP one big IOU, and what can be done to stop further cultural degeneration.

The dichotomy between Western and Indigenous approaches to protecting knowledge The key issue in enforcing intellectual property rights for contemporary indigenous communities stems from the dichotomy between Western and Indigenous cultural systems. These differences include questions of ownership (the individual versus the community) and concerns of the commercialisation of property.

Ownership Indigenous conceptions of ownership do not fit within the Western model of the egocentric individual that is the focal

W

estern systems of intellectual property are widely criticised for their lack of adequate protection of

Indigenous peoples and their cultural values. Intellectual property laws are designed to foster commercial creativity and innovation by protecting the rights of individual creators.

However, Indigenous peoples assert that Western intellectual

16

property systems fail to adequately recognise and protect their cultural forms, products and expressions. Further, they serve the interests of non-Indigenous cultures against the distinct rights and welfare of Indigenous systems of creativity and cultural expressions. Contrasting these intellectual property systems ultimately begs the question: what can be done in order to afford indigenous creators and their works greater groups of individuals.

point of intellectual property laws within the legal system. This is because Indigenous Cultural and Intellectual Property (ICIP) is ‘collectively owned, socially based and evolving continuously,’1 with a number of generations contributing to the creation of ICIP. Indigenous groups are governed by laws that administer rights over their inherited cultural heritage. These laws are founded on the premise of responsibility for traditional knowledge and aim to ensure the maintenance and protection of culture so that it may be transmitted to future generations.2 Indigenous communities therefore often appoint an individual or collective ‘custodian’ to a particular heritage item.

The court examined the nature of this relationship in the Australian case of Bulun Bulun & Anor v R & T Textiles,3 and concluded that it is fiduciary in nature.4 In this case, the work of the artist was created in accordance with the traditional laws and customs of the Ganalbingu people.

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Photo- Carolann Quart

“The key issue in enforcing intellectual property rights for contemporary indigenous communities stems from the dichotomy between Western and Indigenous cultural systems.”

However, it was altered and copied onto fabric that was

as Indigenous works are increasingly being exploited and becoming

sold by R & T Textiles nationally in Australia. Mr Bulun

commodities due to demand for authentic Indigenous artefacts.10 However,

Bulun asserted that as a native title-holder to a portion of

despite the high commercial value of sales, Indigenous communities gain

Ganalbingu country, he had rights of ‘traditional ownership’

minimal benefit from the market consumption of their art and cultural

of that country that are inexorably linked with artistic

products.

A 1998 study conducted by the Australian government revealed that the

ownership.

The Court considered questions as to whether the

Australian Aboriginal arts and craft industry was valued at approximately

common law should recognise communal title and if

AUD$18.5 million in retail sales; however Indigenous artists received less

Aboriginal laws can impose binding obligations on

than half of this amount. By 2002, the retail value of the industry grew to

individuals outside the particular Aboriginal community.

an estimated AUD$100 million, with traditional owners receiving only $30

Justice Von Doussa cited Justice Brennan in Mabo v

million of this turnover. 11

Queensland (No 2) (1992) 175 CLR 1, in raising objection

Western intellectual property systems are thus limited in their ability

to the claim that the common law should recognise a

to accommodate Indigenous works under intellectual property as their

connection between an interest in land and interest in

laws not only fail to recognise focal principle of Indigenous expression, but

related artwork. He recognised distinctions between the

also to protect this expression against exploitative commercial practices.

principles of land ownership and the ownership of artistic works as separate statutory and common law institutions,

What can be done?

It has been suggested that sui generis framework of right should

where recognition of Indigenous communal rights would threaten these ‘skeletal’ principles of the Australian legal

be developed to complement the existing legal system.12 Sui generis

system. Ultimately, the notion of communal Indigenous

translates to an entity that is of its own kind and thus unique in its attributes.

rights in artistic work was not adopted in this case as this

Framing Indigenous intellectual property within this school of thought is

would “involve the creation of rights in Indigenous peoples

practical and provides meaningful and realistic solutions to adequately

which are not otherwise recognised by the legal system

protect Indigenous cultural expressions and knowledge. By considering

5

6

of Australia” and would undermine the provisions of the

Indigenous knowledge within its own contextual framework, without

Copyright Act 1968 (Cth).

superimposing the values and assumption of the West, we can develop an

While Bulun Bulun is considered a significant step

effective and beneficial approach to protecting that knowledge.

cultural

The protection of ICIP is also intrinsically linked to self-determination.

knowledge, critics argue that the decision will only have

The implementation of this protective framework would therefore

a limited practical effect. This is because the fiduciary

contribute to ongoing national reconciliation policies and processes vital

obligation is imposed solely through pursuing litigation

in creating a respectful and united Australian future.

towards

judicial

recognition

of

Indigenous

to halt a third party’s infringement. This is an expensive,

Unless such protective measures are implemented and commercial

reactive solution that is likely to deter Indigenous individuals

interests are not continually prioritised over Indigenous understandings of

or communities from pursuing a claim.

7

collective creation, Indigenous creators will continue to be disadvantaged

This demonstrates that current Western intellectual

by the failings of the Western legal system. As such, there is a very real

property laws provide inadequate and ad-hoc protection

possibility that one of the oldest living traditions in the world will erode

for Indigenous cultural systems, as they do not recognise

to the extent of disrepair. It is time for Australians to recognise how much

the fundamental principle of communal ownership.

of our heritage is linked to ICIP, and thus how much we owe Indigenous creators, and pay up in the form of increased legal protections.

Commercialisation of Indigenous works

1.

The commercialisation of Indigenous customary knowledge

2.

through artwork, traditional artefacts and cultural property is

3.

4.

5.

6.

7.

a major concern for traditional owners.8 Janke believes that the commercialisation of ICIP has often been done without consent, respect for Indigenous cultures or the sharing of

8.

9.

benefits with Indigenous communities. Indigenous cultural

10.

heritage has often been exploited for commercial interests,

11.

9

which in turn is leading to its erosion.

Sand argues that extensive protection of ICIP is justified

12.

Terri Janke and Robynne Quiggin, ‘Indigenous Cultural and Intellectual Property and CustomaryLaw’ (2005) 12 Law Reform Commission of Western Australia, Background Paper 451,456.

Terri Janke, ‘Respecting Indigenous Cultural and Intellectual Property Rights’ (1999) 22 UNSW Law Journal 631, 633.

(1998) 3 Australian Indigenous Law Reporter 547.

Bulun Bulun & Anor v R & T Textiles (1998) 3 AILR 547, 552.

41 IPR 513, 524.

41 IPR 513, 525 (Von Doussa J).

Kimberlee Weatherall, ‘Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs’ (2001) 64 Modern Law Review 215, 221-2.

Jason Behrendt ‘Fiduciary obligations and native title’ (1993) 3(63) Aboriginal Law Bulletin 7; Terri Janke, ‘Respecting Indigenous Cultural and Intellectual Property Rights’ (1999) 22 UNSW Law Journal 631, 632.

Sabine Sand, ‘Sui Generis Laws for the protection of Indigenous expressions of Culture and Traditional Knowledge’ (2002-2003) 22 University of Queensland Law Journal 188, 188.

Australian Government Report of the Contemporary Visual Arts and Craft Inquiry (September 2002) <http://arts.gov.au/sites/default/files/pdfs/Report_of_the_Contemporary_Visual_Arts_ and_Craft_Inquiry.pdf> Erin Mackay ‘Indigenous Traditional knowledge, copyright and art – shortcomings in protection and an alternative approach’ (2009) 32 UNSW Law Journal 1, 26.

DOMESTIC VIOLENCE REFUGEES

Un-Convention-al approaches:

Women, refugees, and domestic violence Domestic violence is commonly acknowledged to be one of society’s sad truths. Yet claiming refugee status to escape domestic violence is not all that easy. Joseph Lavelle Wilson explores the international and domestic laws relating to gendered violence and argues that the current protections afforded to victims are inadequate.

sufficiently protected by the operation

a decidedly male one, and women were

a nation’s obligations under the

of the Convention in Australia.

constructed as part of a family unit that

Convention Relating to the Status of Refugees 1951 (‘the Convention’), a

18

person must satisfy the definition of refugee found in Article 1:

fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…’

Since the 2002 High Court ruling in 1

Khawar, women who suffer domestic violence have, in certain cases, been able to achieve refugee status under the “membership of a particular social category

of

Where does gender fit in

persecution.

However, as this construction frames domestic violence in a cultural, rather then political or religious context, it is deeply problematic. Arguably, when the conceptual basis for laws is flawed, the effective execution of those laws will be flawed as well. Thus, women are not

and/or gender within the definition of refugee in the Convention is reflective of the context in which the convention was

drafted.

Like

the

Universal

Declaration of Human Rights 1948, the Convention was drafted at a time when modern human rights discourse was still in its infancy, and was largely informed by the response of the Western world to the particular human rights and refugee issues which WWII brought to the fore. 2 Whilst a discrete ground of sex or gender was suggested, sexual discrimination

was

the family.

In today’s refugee discourse, women

refugee discourse?

The lack of a discrete ground of sex

‘A person who owing to a well-founded

group”

attached to the primary refugee, the head of

considered

to

be a matter for states to legislate on individually, and the UN High Commissioner for Refugees at the time in fact, “… doubted whether there would be any cases of persecution on account of sex”. 3 The conception of a refugee was

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refugees have been foregrounded – though not always in ways which are useful in providing human rights protection. The concept of refugee has changed as the nature of global conflict has shifted from wars between nations to smaller armed engagements between factions, rebels and the like, a change which has increasingly made women victims. 4 Domestic violence has been viewed by the Refugee Review Tribunal as “personal”; occurring within the private sphere of the home, which allegedly justifies not extending refugee rights to women who suffer domestic abuse.5 This interpretation of domestic violence, which is based on an antiquated private/public, personal/political divide, has been substantially discredited through extensive academic discourse on gender and human rights. It was this same divide which made it so difficult for the Convention drafters to envision women being persecuted for the reason of being women.

Photo- United Nations

Photo- Megara Tegal

Photo- DFID

I

n order to fall within the ambit of

DOMESTIC VIOLENCE REFUGEES

“The UN has been criticised for misconstruing the nature of the woman refugee experience and failing to create legally binding instruments to protect these refugees.”

Gender revisited

“The persecutions that take place

as private, apolitical persons and domestic

in those ‘other’ countries are attributed

violence as a cultural phenomenon occurring

acknowledgment of the particular plight

to

cultural

in non-Western countries, this construction

of women as refugees, with a number

characteristics, while the dynamics of

fails to reflect the reality experienced by

of United Nations Security Council

gender inequality underlying all types of

women refugees.

6

gender-related violence, whether ‘here’ or

There has now been international

Resolutions reflecting this awareness.

While the push from the United Nations

immutable

social

and

‘there’, is not analysed,” Nilsson states.

8

Kneebone argues that women refugees should be incorporated into the existing Convention framework under the political

Refugees

The particular social group ground is

(UNHCR) to put gender on the agenda

convenient for Western nations because it

opinion

has been a step in the right direction, the

allows for a dichotomy to be established

interpretation of the Convention would

UN has been criticised for misconstruing

between

which

bring the construction of women refugees

the nature of the woman refugee

happens everywhere, and social or cultural

away from the personal, cultural, and social,

experience and failing to create legally

gendered violence, which is perceived to

and acknowledge the political nature of

binding instruments to protect these

happen only in war-torn, poverty-stricken

women who face gendered persecution and

refugees.

nations.

violence. 9

High

Commissioner

for

gendered

violence,

or

religion

ground.

Such

an

These conceptual flaws manifest in

I argue, however, that this is still

women

the lack of practical protection actually

insufficient. Gendered violence is a legitimate

refugees have tended to do so in a way

afforded to women refugees who flee

persecution, and must be recognised as such

that fits within the existing Convention

persecution. While the UN “encourages”

in international instruments governing the

framework. In international law, and in

states to explicitly acknowledge women as

rights of refugees. The current construction

Australian courts, women are increasingly

a particular social group for the purposes

of women refugees at international law is

found to be a member of a “particular

of the Convention definition, the lack of an

unsatisfactory due to its ambiguity, lack

social group” within the meaning of the

unequivocal directive, treaty or convention

of clear and principled state practice, and

Convention definition. This construction

cementing this construction of women has

origins in outmoded ideas about gender and

has the advantage of ensuring that a new

inhibited the effective translation of refugee

the non-Western world. International law still

convention or treaty does not need to be

rights protection into consistent lawmaking

has a long way to go in order to ensure the

enacted in order to protect fundamental

and jurisprudence at the state level.

recognition and protection of women fleeing

Thus far, efforts to put in place adequate

protections

for

persecution.

refugee rights.

However, feminist legal theorists

A long road ahead – protecting

have identified a number of significant

refugees

conceptual problems underlying this

violence

construction. Susan Kneebone argues that the UNHCR’s policies are informed by a deficient refugee definition and the notion of women as physically vulnerable sexual objects, calling the legacy of these policies “unfortunate”. 7

“othering”

of

non-Western

nations as the basis for the particular social group strategy.

Australian

domestic

parliament

has

2.

3.

consistently sought to restrict refugee rights,

and

the

judiciary

should

be

commended for asserting its constitutional

4.

5.

6.

authority to prevent abuses of power in this area following the ruling in Khawar.

Eva Nilsson identifies the racial and cultural

The

fleeing

1.

7.

Despite the positive developments in this area, “particular social group” remains an inadequate category of protection for these refugees. By framing women

The Full Bench

8.

9.

Khawar v Minister for Immigration and Multicultural Affairs (2002) 210 CLR; [2002] HCA 14.

Eva Brems, ‘Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse’ (1997) 19.1 Human Rights Quarterly 136, 157.

‘Preliminary Report on Women and Migration’ (2002) International Law Association, New Delhi Conference, Committee on Feminism and International Law 1, 6.

Ibid, 6.

Khawar at 12.

UN Security Council, Security Council resolution 1325 (2000) [on women and peace and security], S/RES/1325, and also UN Security Council, Security Council resolution 1314 (2000) [on children and armed conflict], S/RES/1314.

Susan Kneebone, ‘Women Within the Refugee Construct: ‘Exclusionary Inclusion’ in Policy and Practice – the Australian Experience’ (2005) 17 International Journal of Refugee Law 7, 13.

Eva Nilsson, ‘Persecution on Account of One’s Gender: Refugee Status or Status Quo?’ (2012) 2.1 feminists @ law 1, 15.

Above n 7, 20.

19

FEMALE GENITAL MUTILATION

Female genital mutilation: A human rights issue With the passage of time many age-old cultural practices across the globe have been denounced as an affront to basic human rights. Sefakor Dokli explores the cultural phenomenon of female genital mutilation, and questions more broadly whether we are being culturally imperialist in criminalising certain cultural practices or are we simply upholding basic rights afforded to all peoples?

By Sefakor Dokli

Sierra Leonean society.

What is female genital mutilation (FGM)?

FGM, sometimes termed as female circumcision, is a practice occurring within many cultures worldwide. It involves some form of invasive procedure to parts of the female genitalia. The World Health Organisation (WHO)

In Malaysia FGM predominantly takes place in early infancy.

It is seen as a rite of passage in which the genitalia are pricked usually 40 days after birth.

FGM and the Law FGM is a crime in all Australian states and territories

categorises the practice into four major types: 1

punishable by imprisonment sentence of 7-21 years. In NSW,

20

1. Clitoridectomy: partial or total removal of the clitoris

FGM is an offence under section 45 of the Crimes Act 1900 (‘the

and, in very rare cases, only the prepuce (the fold of skin

Act’), which interestingly states that the consent of the woman

surrounding the clitoris);

to the procedure is not a defence.

2. Excision: partial or total removal of the clitoris and the

In October 2012, ABC aired the stories of three Australian

labia minora, with or without excision of the labia majora;

women who were the victims of genital mutilation. The spotlight

3. Infibulation: cutting then suturing of the inner, or outer,

shed upon the issue galvanised widespread discussion as

labia to create a narrower vaginal opening, with or without

to the clandestine nature of FGM’s occurrence in Australia.

removal of the clitoris; and

Islamic scholar, Imam Afroz Al, declared that FGM was “without

4. Other: all other harmful procedures to the female

a doubt” being carried out in Australia and ABC reporter

genitalia for non-medical purposes, including pricking,

Caro Meldrum-Hanna stated that “there are 120,000 migrant

nicking, piercing, incising, scraping and cauterizing.

women now living in Australia who have suffered female genital mutilation”.

According to WHO, FGM is most commonly practiced in

Following the program’s airing, a spate of arrests occurred

the western, eastern, and north-eastern regions of Africa,

and eight people in New South Wales were charged with

as well as in parts of Asia and the Middle East. An estimated 140 million females have undergone FGM.

inflicting FGM, with further accusations surfacing across Australia. The ABC investigation into what ABC Presenter

2

Chris Uhlmann describes as a “brutal crime masquerading

Cultural underpinnings In Somalia, where 95-98% of females undergo FGM,3 predominantly infibulation,4 a UNHCR report states FGM is mainly practiced to safeguard a daughter’s virginity, thus increasing her potential dowry and upholding her family’s honour.5 In Sierra Leone, the procedure is one segment of an elaborate female rite of passage that groups of girls undergo together. This act symbolises reaching womanhood.

Females who partake in this rite of passage enter secret societies and are esteemed within the community. Girls who do not ungergo this procedure are considered to be children and unworthy of taking leadership positions in

as a custom” led the federal government to address FGM in Australia.

The Australian government issued a media release in December 2012 which called for a review of the current legal framework and denounced the practice in Australia.

“It is a violation of the human rights of women and girls and there is no place for it here in Australia. Its occurrence in this country cannot be excused by culture,” the media release stated. 6 In that same month, the United Nations General Assembly passed a resolution on the elimination of FGM. 7 In April this year, the federal government held a national

The Full Bench

FEMALE GENITAL MUTILATION

in the United States. Musalo faced a difficult position as society questioned what right she had to judge or condemn this culture procedure. Musalo’s actions of imposing a Western concept of human rights on a different country and culture led to her being labeled by many as a cultural imperialist. Musalo drew attention to the difficult and sensitive interplay of culture and the law,

Photo- IRIN

questioning: “what is to be done when generally accepted international human rights standards conflict with long-standing cultural practices?”11 Recently, I spoke with Juliana Nkrumah, Australia’s first community education officer on FGM. Nkrumah categorically believes that when it comes to FGM and the law and culture, “culture must take a back seat.”

summit on FGM, bringing together community

A woman of African descent herself, Nkrumah appreciates the importance

leaders, legal, health and policing experts, as well

of culture to FGM, stating that in some communities FGM “defines a whole

as women who had undergone the procedure.

female identity.” Because of this, she believes the way forward in addressing

However, not all stakeholders were speaking

the problem is not cutting down the cultures of others but engaging with

the same language. Former Young South Australian

communities in a dialogue they can associate with. Simply criminalising FGM

of the year Khadija Gbla, who has undergone

will not change years of cultural legitimisation of the practice.

FGM, spoke at the summit and expressed concern

“We continue to make the mistake of saying ‘oh we know and we think

regarding the term ‘female genital mutilation.’ She

and we observe all this and we believe it is barbaric.’ If people want to do this

argued the term is culturally insensitive and the

they will do it. Because there are two different things in play: my belief, my

harsh language has the effect of alienating survivors

culture, my identity, and your law,” Nkrumah says.

of the procedure.

The argument of law versus culture becomes further complicated when

“I think it’s quite harsh and it’s very westerncentric,” Gbla said.

FGM is compared to western practices that are widely accepted, yet not that dissimilar.

Gbla, who objects to being referred to

“[We] have to acknowledge the contradictions that are occurring, we

repeatedly as someone who is ‘mutilated’, believes

accept that circumcisions happen in boys and we don’t make a great fuss

that the term ‘female circumcision’ “show(s) more

about that. We accept that white Anglo Saxon women are having labia

respect to the victims.”8

plasties done and the number of those procedures have gone up five fold

This raises the question of the role culture plays

in the last ten years, which means that it must be culturally driven, and that’s

within the law. While the Act brands the procedure

happening here in Australia and we’re ignoring it. So we’re taking a stand

as ‘mutilation’ and governments have decried

and telling one community that they’re mutilating their bodies, and we’re

the practice, there remain voices in the discourse

tolerating our white community,” stated Gynecologist Sonia Grover. 12

that are staunchly proud to have experienced the

It is evident there are issues still to be wrestled with in traversing the issue

richness of their culture through circumcision. One

of FGM, but when it comes to the crux of it, basic human rights simply cannot

such individual is anthropologist and health advisor

be compromised in the name of cultural relativity.

21

Dr. Fuambai Ahmadu. Having grown up in the United States, Ahmadu made the decision to return 1.

the initiation procedure. She states that although

2.

“a physically excruciating experience…the positive

3.

9

aspects have been much more profound” and that she “didn’t experience it as mutilation.”10

The cultural conundrum

4.

5.

6.

As a proponent of human rights, I abhor the practice, yet as a migrant I advocate for keeping

7.

8.

cultural practices alive as our worlds melt into sinews of sameness.

Professor Karen Musalo expressed similar sentiments after representing a woman who fled Togo, West Africa to avoid FGM, seeking asylum

9.

10.

11.

12.

World Health Organisation: Facts Sheet No. 241 <http://www.who.int/mediacentre/factsheets/ fs241/en/>.

World Health Organisation: Facts Sheet No. 241 <http://www.who.int/mediacentre/factsheets/ fs241/en/>.

UNICEF Advocacy Paper: Eradication of Female Genital Mutilation in Somalia, p 34. <www. unicef.org/somalia/SOM_FGM_Advocacy_Paper.pdf‎>.

It is reported that 80% of all FGM procedures in Somalia are the infibulation type. United States Department of State, Somalia: Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC), 1 June 2001 <http://www.refworld.org/docid/46d5787c32.html>.

United States Department of State, Somalia: Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC), 1 June 2001 <http://www.refworld.org/docid/46d5787c32.html>.

Joint Media Release: Gillard Government to Act on Female Genital Mutilation in Australia, 11 December 2012 <http://www.health.gov.au/internet/ministers/publishing.nsf/Content/mr-yr12tp-tp111.htm>.

Resolution A/67/450 <http://www.un.org/Docs/journal/asp/ws.asp?m=A/67/450>.

Waleed Aly, ‘Why we should stop using the phrase ‘female genital mutilation’, RN Drive, 15 April 2013 <http://www.abc.net.au/radionational/programs/drive/female-circumcision-debate/4630478>.

Fuambi Ahmada, Rites and Wrongs: Female “Circumcision” in Africa, 307 <http://csde.washington.edu/>.

Fuambi Ahmada, SBS Insight: Clear Cut, 19/02/13. <http://www.sbs.com.au/insight/episode/ transcript/514/Clear-Cut>.

Karen Musalo, ‘When Rights and Cultures Collide’, (1997) 8 Santa Clara University Issues in Ethics 3 http://www.scu.edu/ethics/publications/iie/v8n3/rightsandcultures.html Sonia Grover, SBS Insight: Clear Cut, 19/02/13. http://www.sbs.com.au/insight/episode/transcript/514/Clear-Cut

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Photo-Travis Lupick

to her home country, Sierra Leone, at 21 to undergo

ART VERSUS CHILD PORNOGRAPHY

Where should the line be drawn?

Art versus child pornography

Art, nudity, and pornography are different, and an individual’s perception of what these constitute is highly subjective.

But when does a nude image become a salacious artefact? Nesha Jeyalingam explores the blurred line between art and the law.

an indecent article. However, the NSW Director of Public Prosecutions dropped charges three weeks later, after the

Photo-Annie Leibovitz

22

Australian Classification Board gave the works a PG rating, and the controversial photographs were returned to the gallery. The then Prime Minister, Kevin Rudd, declared Henson’s work to be “revolting”, and pleaded, “For God’s sake, let’s just allow kids to be kids”.1 But actress Cate Blanchett, among others, supported Henson, in an effort to preserve and defend Australia’s cultural reputation.

In a letter issued to the federal government following

here do you draw the line between child pornography

W

the 2020 Summit in 2008, Blanchett, a number of prominent

and art? The debate surrounding the sexualisation

artists and creative professionals declared, “The potential

of children in art has intensified over the years, with the likes

prosecution of one of our most respected artists is no way

of Kate Moss, Miley Cyrus, Cate Blanchett, and Kevin Rudd

to build a creative Australia and does untold damage on

becoming caught up among the debate and drama. While

our cultural reputation”.2

some argue that pictures depicting nude children or minors in

What are the laws…or lack of laws?

provocative poses constitute creativity and artistic merit, others have put their foot down and accused such works of violating the rights of a child. The shades of grey surrounding this debate shed light on the blurred line between law and culture in the realm of the artistic world.

Following the Henson scandal, the NSW government passed the Crimes Amendment (Child Pornography and Abuse Material) Act 2010,3 an act to amend the Crimes Act 1900,4 (hereafter, the Act). Importantly, as a result of the amendment, the artistic purpose defence to child

The Bill Henson scandal

pornography was removed. This defence previously

In Australia, the debate between child pornography and

provided sanction to those charged with the production,

art became a hot topic for discussion following the 2008

dissemination, or possession of child pornography, where

controversy surrounding the contemporary Australian artist,

such material was created for a genuine, literary, or

Bill Henson. After allegations were made against Henson

journalistic purpose. It is likely that the intention behind the

for displaying child pornography, police raided Henson’s

removal of the defence was to make it easier to prosecute

exhibition at the Roslyn Oxley9 Gallery in Paddington, Sydney.

individuals who created pornographic works.

It was revealed that Henson had taken photographs of naked children as young as 12-years-old.

Additionally, the amendment replaced the general concept of child pornography with “child abuse material”5.

Out of a total of 41 artworks, 20 were seized, with the police

Under the Act, child abuse material includes “material that

claiming they intended to lay charges against Henson under

depicts or describes, in a way that reasonable persons

both the NSW and Commonwealth legislation for publishing

would regard as being offensive, the private parts of a

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y

“I took part in a photo shoot that was supposed to be ‘artistic’ and now, seeing the photographs and reading the story, I feel so embarrassed.” person who is, appears to be or is implied to be,

the Henson controversy in 2008, a Vanity Fair photo shoot, depicting a

a child”,6 of which a child has been defined as “a

revealing photo of an also 15-year-old Miley Cyrus triggered an outcry.

person who is under the age of 16 years”.7 This

Celebrity photographer, Annie Leibovitz, photographed Cyrus in a satin

effectively widened the scope of works that could

sheet covering her topless front, but leaving her bare back on show.

be considered infringing material, and placed a

Cyrus revealed, “I took part in a photo shoot that was supposed to be

greater burden on artists to ensure compliance.

‘artistic’ and now, seeing the photographs and reading the story, I feel so

But it has been argued that the consideration of artistic merit, in determining the legal

embarrassed”. 11

Where should the line be drawn?

validity of an artwork, has not been completely

Some argue that artistic merits should be recognised for those works

eradicated. When considering whether a piece

that flirt on the borderline of child pornography and art. In an article in The

of work is “offensive”,8 the court is required to

Punch, journalist Carrie Miller scorned society for becoming hysterical at

consider artistic merit of the material, among

the sight of innocent images of children in their underpants. The outcry

other factors. The determination of a work as

followed a hospital’s rejection of the work of one of Australia’s leading

“offensive”9 contributes to whether or not the

contemporary artists, Del Kathryn Barton, who submitted a photograph

material is considered to be child pornography.

of her shirtless 6-year-old son to be auctioned at the hospital’s benefit.

Although the artistic purpose defence was

While acknowledging that exploiting children is not acceptable,

removed, and the Act now expands the scope

Miller begged society to return to a “state of innocence – one where I

of what may be considered child pornography,

could once again take joy in a picture of a naked kid running around at

appearing to narrow the rights of artists, it is

the beach, rather than fearing people might think I’m having a perv”. 12

arguable that the amendments require a more

This view highlights the distinction between “pornography” and

careful consideration of each work. This is likely

“nudity”. The former term is associated with an intention to arouse sexual

to result in pre-emptive measures of confiscation

excitement in its audience, while the latter term merely indicates a state

prior to any charges being laid down.

of being without clothing. Advocates seeking a greater emphasis to be

A regular occurrence

placed on artistic merit point to the paintings displayed by the Victorians

More recently, the Art Gallery of NSW came

and Edwardians, which would be considered “highly suspect” in today’s

under attack for the Modern Lovers series. This

modern age, where our attitudes towards art, sexuality, and children have

photo shoot depicted a 15-year-old Kate Moss

changed dramatically. 13

revealing her breasts. While art critics claim,

However, on the other side of the spectrum lies recognition of the

“It’s fabulous photography and that’s what

need to protect some of the most vulnerable members of our society. An

counts”, Moss states, “I hated it”, describing

example of the negative consequences that can occur when artistic merit

the exploitation she experienced and nervous

is prioritised beyond the rights of the child can be seen in Richard Prince’s

breakdown she suffered following the topless

photograph, later re-photographed by Gary Gross, of a naked 10-year-

photo shoot.

10

old Brooke Shields. While Shield’s mother signed away her child’s rights,

It appears that Kate Moss is not alone in

without hesitation, in the hope of her daughter becoming a star, the

sharing these sentiments. Just a month prior to

picture found its way into a Playboy Press publication. A few years later, Shields attempted to buy back her rights, but it was too late. A judge

“It’s fabulous photography and that’s what counts.”

ruled that she was a “hapless victim to a contract…to which two grasping adults bound her”.14 The United Kingdom’s art gallery, Tate Modern, was criticised for exhibiting the image, with Michele Elliot, founder of Kidscape, claiming, “It must be bordering on child pornography. It is certainly not art… And putting the picture in a room without a warning

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23

how tv affects our perception of law and order

outside really is a magnet for paedophiles”. 15

it is difficult to look past the vulnerability and needs of the

Conclusion

exposed subject of the artwork, that is, the child.

Divergence of opinion and extensive debate is healthy, necessary and inevitable in a democratic society. But in

1.

2.

an attempt to negotiate between the law and culture, something must be said about the implications for the subject of the art. It is difficult to comprehend that a child is capable of giving informed consent to the use of their body in a sexualised or provocative manner for the sake of art. There is no doubt that the implications for the child in

3.

4.

5.

6.

7.

8.

9.

10.

the picture extend above and beyond the physical image itself. Kate Moss, Miley Cyrus, and in particular, Brooke Shields, enforce the sense of vulnerability experienced

11.

12.

when decisions are made on behalf of a child.

The decision that a child or their parent makes in terms

13.

of what use a child’s body will have carries greater weight in today’s modern era. With the advent of the internet and social media; images, photos, and “art” can be shared globally on a scale never imagined before. While artistic merit is important, and by no doubt must be considered,

24

14.

15.

Australian Associated Press, Rudd revolted (23 May 2008) The Sydney Morning Herald <http://www.smh.com.au/articles/2008/05/23/1211183044543.html> at 3 May 2013.

Karen Davis and Simon Kirby, Blanchett joins chorus against Henson attack (28 May 2008) The Canberra Times <http://web.archive.org/ web/20100904163257/http://www.canberratimes.com.au/news/local/ news/general/blanchett-joins-chorus-against-henson-attack/778095. aspx?> at 3 May 2013.

Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW).

Crimes Act 1900 (NSW).

Crimes Act 1900 (NSW), s91FB. Crimes Act 1900 (NSW), s91FB(1)(d).

Crimes Act 1900 (NSW), s91FA. Crimes Act 1900 (NSW), s91FB(1).

Crimes Act 1900 (NSW), s91FB(1).

Steve Dow, Child porn or art? Topless teenage Moss gets mixed reviews (11 February 2013) The Sydney Morning Herald <http://www.smh.com. au/entertainment/art-and-design/child-porn-or-art-topless-teenagemoss-gets-mixed-reviews-20130211-2e85t.html> at 3 May 2013.

Caitlin Fitzsimmons, Disney child star upset over Vanity Fair pictures (28 April 2008) The Guardian <http://www.guardian.co.uk/media/2008/ apr/28/pressandpublishing1> at 3 May 2013.

Carrie Miller, More hysteria over the ‘sexualisation’ of children (6 January 2011) The Punch <http://www.thepunch.com.au/articles/more-hysteria-over-the-sexualisation-of-children/> at 3 May 2013.

Florence Waters, Brooke Shields photograph: the sexualisation of children for ‘art’ (2 October 2009) The Telegraph <http://www.telegraph.co.uk/ culture/art/6251130/Brooke-Shields-photograph-the-sexualisation-of-children-for-art.html> at 3 May 2013.

Florence Waters, Brooke Shields photograph: the sexualisation of children for ‘art’ (2 October 2009) The Telegraph <http://www.telegraph.co.uk/ culture/art/6251130/Brooke-Shields-photograph-the-sexualisation-of-children-for-art.html> at 3 May 2013.

Florence Waters, Brooke Shields photograph: the sexualisation of children for ‘art’ (2 October 2009) The Telegraph <http://www.telegraph.co.uk/ culture/art/6251130/Brooke-Shields-photograph-the-sexualisation-of-children-for-art.html> at 3 May 2013.

Pop culture: Your right to be informed correctly How television affects our perception of law and order Turn on your television and you will be forced to decide whether you would prefer to watch CSI, NCIS, or multiple variations of Law & Order. The common factor between all these shows is that they are crime dramas – attempting to portray the processes involved by police and forensic scientists when they undertake to solve a variety of prevalent crimes. The portrayal of crime in popular culture is not new, though it seems to have become increasingly popular in recent times. Society’s interest in viewing these shows may be beneficial for production companies who have a commercial interest in the success of these shows; however, the same beneficial effect may not necessarily be said to be true for the law enforcement agencies and legal systems of today.

Crime shows always rate highly amongst viewers. Let’s face it, most of us enjoy the odd episode of Law and Order.

However, the impact of viewers being saturated with crime shows is that we are all becoming crime ‘experts’ in our own mind, causing problems for law enforcement officers and lawyers alike.

Interestingly, as Bianca Xerri explores, popular culture, through the new trend of reality-based police shows, provides a unique medium for the public to be re-educated on the reality of law and order.

The CSI effect We are often taught at a young age that we should not believe everything we read (or in this instance, watch on TV), however research has shown that that the media plays a substantial function in developing our understanding

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how tv affects our perception of law and order is more rampant than it is. Whilst we might be able to watch an episode of The Mentalist and appreciate the witty remarks and creative writing, it would appear that the general public’s understanding of the legal system, law enforcement, criminals, and prisons is not exempt from the power of the media when it comes to these matters.

This perception is not exclusive to Australians, and it would appear that our American, Canadian and British counterparts are exhibiting the same distorted perceptions, in what is being dubbed the CSI effect – the blurring of the line between what is entertainment and what is truth.

Not only do these shows make us believe that crime is rampant, they give us an erroneous belief that the pursuit of justice is simple, and will always be achieved. These shows often depict crimes where the bad guy is always caught quickly using high-tech science, and justice always prevails.

The effect of this phenomenon has often proven to be negative for our real life law enforcement agencies. Laura Huey reveals that police officers and forensic investigators often find themselves being judged and directed how to do their job by the public who believe they are as equally informed on the methodology involved as those who have undertaken specialist training.2 Huey reveals the police have acknowledged the influence of the media upon the perception of their role in society, referencing an officer who stated, “I think the biggest influence on how the public views us is TV and the media”.

3

Is the CSI effect blurring guilt and innocence?

The legal system is also affected by this phenomenon

Photo-Paula Steele

and disturbing discourse has been generated about the potential effect this may have on burdening the prosecution.

It is argued that jurors will be expecting aggressive crossexaminations and verbose and exaggerating closing arguments to persuade them of the guilt of the accused, akin to the over dramatic Law and Order and Boston Legal.4 However, when faced with a courtroom and a false sense and perception of certain concepts. Interestingly, studies show that the Australian public’s perception of crime rates and trends is misguided.

In fact, we often believe that crime rates are increasing for offences, while police statistics indicate the rate of these offences are declining or remaining stable.1 It appears the media plays a role in fuelling our belief that crime

of the situation that will unveil before them, it is possible the jurors will equate the lack of dramatic persuasion with the innocence of the accused, therefore acquitting more defendants. Scarily, this seems to suggest that there is little public confidence in the abilities of law enforcement and legal officers.

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25

how tv affects our perception of law and order

On the other hand, the CSI effect can have the opposite effect

on a daily basis across Australia.

in circumstances of scientific evidence. Miscarriages of justice have

In recent times, there has been a move to crack down

occurred in criminal investigations in regards to the reliability of DNA

on drug supply and importation, and traffic offences such

evidence and misconceptions by the jury who regard DNA evidence

as speeding and drink driving. Whilst the prevalence of

as entirely accurate due to media influence. The Australian Institute

these issues is reinforced through the scenes presented

of Criminology discovered that “juries were 23 times more likely

in these programmes, so is the notion that such criminals

to vote guilty in homicide cases and 33 times more likely to vote

will be caught. This is particularly important as it sends the

guilty in sexual assault cases when DNA evidence was admitted”.

message to the community that officers are putting their

Television shows influence juries to assume that forensic science is

words into action to eradicate these issues. This also has

‘beyond doubt,’ sometimes leading to catastrophic consequences.

the positive affect of improving public perception of the

This was all too true in the Farah Jama case, in which an individual

effectiveness of these officers.

was wrongly convicted of rape. In that case, the jury based their

At the conclusion of each episode, we are informed of

conviction on DNA evidence, which was later found to have been

the sentence that each individual has received. This may

contaminated. In respect of the Farah Jama case, Frank Vincent

be for entertainment purposes – as an ending to a story –

reported: “the CSI effect occurred not only with the jury but also

however, it also holds the potential to educate the public of

police investigators and prosecutors who were essentially blinded

the consequences of defying certain rules and regulations.

by the DNA evidence.”

This is of significance, as Davis and Dossetor note that the

How realistic is ‘reality’?

general public commonly underestimate the length and

If crime dramas are one of the fastest growing genres of

severity of criminal sentences.5 It is not uncommon for

television programming, up there with it is the boom in reality-based

individuals who appear on these shows to state that they

shows. Whilst, by definition, these shows are intended to portray

were unaware that they were conducting themselves in an

26 everyday people in unrehearsed situations, the circumstances are

illegal manner, or that they did not believe the consequence

often unrealistic and competitive in nature and it can be argued

would be as severe as it proves to be. The reality is that

that they are simply an extension of their fictional drama cousin.

there is no clearer way to send a message to the public that

Recognising the influence of the media, the popularity of crime

ignorance is not a defence to breaking the law.

and reality TV, and the potential to improve the public’s perception

Conclusion

of law enforcement officers, a different kind of programming was

There is undoubtedly entertainment value in drama

created in form of Border Security: Australia’s Front Line, The Force:

television shows such as CSI and Law & Order, and their

Behind the Line, RBT and The Recruits. These shows follow the

reality counterparts, Border Security and The Force. It is

work of various officers as they enforce Australian customs and

clear that dramatic crime shows significantly influence

immigration laws, road rules and other crimes legislation. These

the public’s perception of law and enforcement, and can

shows are built on the premise that no acting is involved, however

sometimes hinder the proper pursuit of justice. However,

the scenarios presented to viewers are designed to maintain viewer

reality shows have utilised the unparalleled might of popular

interest.

culture to impart relevant and important information onto

As an added bonus for those concerned about the CSI effect, these shows have provided a pop culture method of communication

the viewers in a way that is undeniably enjoyable and more significantly, accurate.

with the public and potential education of issues of crime and law enforcement.

1.

Re-Educating the public

2.

Whilst RBT & Border Security are specific in the laws they are shown to enforce, this does not detract from their relevance, or that

3.

4.

they present issues topical in today’s society. Unlike crime drama programmes, these shows do not have geographical limits, and allow insight into the challenges that law enforcement officers face

5.

Brent Davis & Kym Dossetor, (Mis)perceptions of Crime in Australia. 2010. Trends & Issues in Crime & Criminal Justice 396.

Laura Huey, ‘’I’ve seen this on CSI’: Criminal investigators’ perceptions about the management of public expectations in the field’ [2010] 6(1) Crime, Media, Culture, 49.

Ibid, 65.

Kristin D. Brudy, The Drama of the Courtroom: Media Effects on American Culture and Law (Psychology Honours Thesis, Georgetown University, 2006) p 3; Jenny Wise, Providing The CSI Treatment, Current Issues in Criminal Justice, vol. 21 no.3 p 383.

Davis & Dossetor, above n1.

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aboriginal offenders in the kimberley

Sky-high hurdles Phoebe Riordan explores the implementation of the Young Offenders Act 1994 (WA) for Aboriginal offenders in the Kimberley region, and investigates whether the sentencing options are truly working.

Aboriginal offenders in the Kimberley and regularity at which young people were imprisoned by courts. The legislation in place around Australia attempted to improve the legal system for

Photo-Rusty Stewart

young offenders.

The Act allows a young person to be first cautioned, or referred to juvenile justice teams (JJT) where young offenders are encouraged to take responsibility for their actions, prior to a court entering a finding of guilt. This can spare a young person and their family, particularly in a remote area of WA, the necessity of travelling into town to go to court, especially as many people do not or cannot drive, or do not have access to a car. Public transport in most Kimberley towns is non-existent.

For offences that occur after referrals to the JJT,

28

and after a finding of guilt by the courts, a court dealWhile spending my last summer in the Kimberley region in WA I often questioned: Why do some young Australians reach 18 years of age with a criminal record so long it would sever hopes even for bar or retail work, when many others are celebrating at “schoolies” and considering university degrees?

How do these young people find themselves being sentenced to periods of detention, thousands of kilometres away from their families and communities, to become the next item on the assembly line of prisons, that some have

ing with a young person under the Act can impose no punishment, with or without conditions, security by a “responsible adult”, or a recognisance by the offender that they must be of good behaviour for a year.6 Alternatively, the Court can impose a Youth Community-Based Order (YCBO), a court order requiring a juvenile offender be supervised in the community by youth justice officers, and which often includes

termed “monster factories”?

It’s nearly 15 years since the introduction of the Young Offenders Act 19971 in NSW, and nearly 20 years since the introduction of the Young Offenders Act 19942 in Western Australia (WA) (‘the Act’). While in NSW the introduction of the legislation has deferred a custodial order for Indigenous offenders from just under a year and a half to just under two years,3 it does not seem to have

various community and attendance conditions.7 The courts can also impose an Intensive Youth Supervision Order (IYSO), and this can be “with or without detention”.8 The remoteness of residence of an offender is to be taken into account by the courts.

Juvenile justice teams (JJT) – achieving

had the same success in remote WA. A little over 10% of Australia’s population resides in WA, yet it houses 17%

justice?

of Australia’s prison inmates. While NSW and QLD, the country’s largest im-

JJTs were met with enthusiasm when they were

prisoners, have been imprisoning over the past year, roughly, in proportion to

introduced. They convene meetings to combine the

their population, one must ask, why does WA stand out? An important factor

victim and the offender with support staff, as well as

to consider is the proportionally high Aboriginal population in WA, as 13.2%

a police officer and a school or cultural group repre-

of the total Australian Aboriginal population resides in WA, and the high

sentative, in the hopes of coming to an agreement

rates of custodial sentences awarded in the state.

to determine the best way for an offender to recog-

4

The young offender’s Acts, or their equivalents, were introduced in all

nise the harm they caused, and make amends. It is

Australian jurisdictions with the aim, among others, of stopping the speed

hoped that young offenders keep these personalised

5

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aboriginal offenders in the kimberley offences, particularly in relation to trespass and burglary.

“When you don’t share the cultural concept of the ‘Australian Dream’, it can be hard to see what’s so bad about breaking into the school or someone’s house and stealing stuff,” he said.

It is arguable that the lack of role models contributes to

Photo-Young Offenders Act - Newtown grafitti

these attitudes. One young person, when speaking of his friends’ crimes outside the court said, “They think they older cause they smoke and drink…They gonna turn out like the older people [but they] don’t want to be like any of the older people”.

In this light, suddenly all of the pragmatic measures of the Act, including the offenders’ “support people”, and the victim and their support people, face a much steeper uphill battle.

The aim of JJTs is to ensure that young offenders face the hurt and consequence of their crime much more directly. Social numbness and lack of loyalty to community are only some of the reasons explaining why in Kununurra, while many young people might be close to rubbing their nose in the hurt they caused in team meetings, they are unable to take away lasting lessons, and continue to end up before the courts.

lessons in their heads for the future.9 However, in remote small towns with a complex web of social problems spanning generations and entire communities, team referrals often have difficulty making a long-term impact. Glen Dooley, Managing Solicitor at the East Kimberley Aboriginal Legal Service, says towns including Kununurra and Halls Creek, and communities such as Wirrimanu and Kalumburu, are over-policed and for this reason it becomes difficult to keep young people out of trouble for long periods of time.

“Sometimes arrest and imprisonment offers the best of some very limited choices.”

Are the sentencing options setting remote youths up for failure?

In February 2013, Mr Dooley said the Kimberley town of Halls Creek used to be “the worst place in the world”. It is now a different town.

“The diversionary measures in big cities don’t really apply here, because the second and third times come around really, really quickly,” said Mr Dooley.

“The overall picture…is a major reduction in violent crime due to drops in the amount of alcohol available…But they never changed the number of cops in town – so the cops that used to mop up violence are now targeting people for traffic offences…

Kids get charged for taking a shortcut through the hospital or school, where in another jurisdiction, the police simply wouldn’t have the time or resources to deal with that,” he said.

Mr Dooley, and other lawyers, spoke of communities where police-community relations have been less than amiable and police were known to put youth offenders on bail conditions with reporting and curfew requirements, but not schedule them in for the next available circuit court date. With court only once or twice a month, in a small town with high police to population ratios, breach of lengthy conditions be-

Another deeper issue particularly in Kununurra, a major Kimberley regional centre, is the respect for, and loyalty to, one’s own community. The most common charges dealt with by the East Kimberley Magistrate’s Court are burglary and stealing offences.10 Mr Dooley believes that different beliefs and ideals contribute to a high rate of Indigenous youth offending in these categories of

comes exponentially more likely.

In a 2010 paper, East Kimberley Magistrate, Catherine Crawford, argued that responsible adults, key for the implementation of each of the Act’s sentencing options, are difficult to come across.

“Responsible adults are difficult to find. The home is of-

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29

aboriginal offenders in the kimberley Photo-Rusty Stewart

ten grossly overcrowded, or a place where drinking and gambling may continue into the night, with all the attendant noise and risk of violence such an environment holds,” Magistrate Crawford said.11 It became apparent in the Kimberley region that being out of one’s home is often the safest place for vulnerable young people, and those children and teens who remain in the family home face difficulties in complying with bail conditions.

Ms Platt, of Legal Aid WA, said, “Light sentencing doesn’t change the environment a person lives in, and these become heavy sentences because they’re back in front of the court so often”.

Custodial sentences – coming all too quickly In desert communities such as Wirrimanu and Warmun, prison has become a normative experience for many Aboriginal people, particularly men.12 It has been suggested that it is part of the construction of desert masculinity, and also a result of a lack of choice.

“Faced with the choice of paying a fine, and then going hungry for some weeks, or not paying a fine and going to prison where they will be fed… sometimes arrest and imprisonment offers the best of some very limited choices,” Brian McCoy said.13 It is apparent that procedural problems aggravate difficult circumstances. On circuit court days in remote communities, most offenders

30

do not speak English as a first language, and there are rarely interpreters available, particularly for the Magistrates Court of WA. While bench books instruct magistrates that court in the Kimberley region is less formal – defendants often do not wear shoes to court, for example, and much verbal interchange is conversational – than city courts, language remains technical.

this is the white law, this is what they say you have done wrong,” he said.

It became apparent during my experiences in the Kimberley region that young people did not appear to be afraid of the court, the Magistrate, or even police. Instead, they only seemed afraid of a fate in prison. However, while it seems that many 18-year-old non-Indigenous children in the Kimberley are thinking about their futures in mining, trades or university, Indigenous 18-year-olds are heading right there, if they haven’t already been.

During my experiences in the Kimberley region, I noted, on more than one occasion, defendants struggling with the meaning of the words “guilty” and “not guilty”. It became apparent that despite a

1.

2.

3.

Magistrate speaking conversationally, the Magistrate continues to construct sentences with more complexity and technicality than a poor-

4.

ly-educated person who speaks English as a second, third, or possibly fourth language. One could also throw highly estimated numbers of

5.

undiagnosed foetal alcohol syndrome into the mix,14 and when facing plea and sentencing decisions, issues of blatant poverty come starkly to the fore. And lawyers generally have less than half an hour before court to deal with such issues.

Mr Dooley speaks about his attempts to assist clients facing possible custodial sentences in these circumstances.

“You have to relate it to their cultural experiences….What’s going

6.

7.

8.

9.

10.

11.

to happen in the next year when you’re not around? Because you’re

12.

Aboriginal, the fact is someone close to you is going to die. A, you’re

13.

going to start missing funerals; B, you’re going to start missing football games…You have to explain to people what the system is all about –

14.

Young Offenders Act 1997 (NSW).

Young Offenders Act 1994 (WA).

Wai-Yin Wan, Elizabeth Moore and Steve Moffatt, ‘The impact of the NSW Young Offenders Act (1997) on likelihood of custodial order’ (2013) 166 Crime and Justice Bulletin 1.

Australian Indigenous HealthInfoNet, What details do we know about the Indigenous population? (2013) Edith Cowan University < http://www.healthinfonet.ecu.edu.au/ health-facts/health-faqs/aboriginal-population> at 10 April 2013.

Young Offenders Act 1997 (NSW), Young Offenders Act 1994 (WA), Young Offenders Act 1993 (SA), Children, Youth and Families Act 2005 (Vic), Juvenile Justice Act 1992 (QLD), Youth Justice Act 1997 (Tas), Youth Justice Act 2005 (NT), Children and Young People Act 2008 (ACT).

Young Offenders Act 1994 (WA), ss 66-70.

Young Offenders Act 1994 (WA), s 27.

Young Offenders Act 1994 (WA), s 99.

Western Australia, Parliamentary Debates, Legislative Council, 1994.

As found in the East Kimberley Children’s Court lists, January and February 2013.

Catherine Crawford, ‘Families impacted by the criminal justice system on the frontier: A new model required,’ (2010) 17 (3) Psychiatry, Psychology and Law 464, 467.

Brian McCoy, Holding Men: Kanyirninpa and the health of Aboriginal Men (2008), 169.

Brian McCoy, Holding Men: Kanyirninpa and the health of Aboriginal Men (2008), 171-172.

As found in the East Kimberley Children’s Court lists, January and February 2013.

The Full Bench

OPINION: WHAT DOES MULTICULTURAL REALLY MEAN?

Opinion

A dynamic view of culture: what does multicultural really mean?

Kate Taylor shares her views on alternate forms of culture and how different sub cultures in society are treated under the law.

Culture (/ˈkʌltʃə/): the ideas, customs, and social behaviour of a particular people or society.

Subculture (/ˈsʌbkʌltʃə/): a cultural group within a larger culture, often having beliefs or interests at variance with those of the larger culture.

Multicultural (/mʌltɪˈkʌltʃ(ə)r(ə)l/): relating to or containing several cultural or ethnic groups within a society.1 Photo-Lewisham Dreamer If I asked you to explain to me why Australia is one of the most multicultural societies in the world, I bet your answer would almost solely refer to the vast mix of ethnicities of this country’s inhabitants.

So what about religious groups and the homosexual community? What about punks, goths or those participating in cults?

If multiculturalism in its base and literal form encompasses a va-

31

riety of cultures within a nation or society, the question at hand becomes what is necessary for a group to be classified as a culture? What is the lowest common denominator for dividing and defining cultural groups in order to protect them against those who are opposed to what they do not know or understand?

Recently in Manchester, United Kingdom, 20-year-old Sophie Lancaster was kicked and stamped on as she tried to cradle her badly beaten boyfriend. Her boyfriend survived, but Sophie fell into a coma and later died. The pair were attacked for no other reason except that they belonged to the ‘gothic movement’.

When sentencing the two offenders, the judge, without precedent, declared the violence a ‘hate crime’. However, following this the law has been left in limbo. There is no legislative provision that declares crimes against sub-cultures as hate crimes in the United Kingdom.

Hate crimes are actions motivated by racial, sexual or other prejudice and detestation. In New South Wales, if the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability) this may be considered in sentencing and can be the

basis for harsher punishments although this is at the discretion of the judge.

You’ll notice that the examples given broadly outline defined cultural groups and while the operative word is group, there is no hint that this extends to subcultural groups and no case law to support the notion.

It is unquestionable in my mind that the definition of group in this context needs to be expanded. Crimes motivated by hatred of difference need to be met harshly. In the face of such a diverse and progressive society, it is impracticable to definitively list all cultural groups, whether they be sub-groups or otherwise.

What about a definition of group that considers the dynamic and fluid nature of culture; that guides courts in sentencing to broaden the definition to include previously unconsidered cultural minorities in order to punish the brutal and unfounded violence of perpetrators of hate crimes such as the individuals that ultimately killed Sophie Lancaster purely because she was dressed in black and had piercings and looked different.

1.

All definitions from the Oxford Dictionary.

The Full Bench

Objectivity is a vital element in the defence of provocation to ensure that all individuals are judged against the same, objective standard of the ‘ordinary person.’

Sage Nemra considers whether this standard should encompass considerations of ethnicity in a society where the ‘ordinary person’ is, now, not so ordinary.

Provoking the (not so) ordinary person Should a cultural defence to murder exist?

In our culturally diverse society we are often faced with the issue of the extent to which (if any) the law should consider and allow for ethnicity, particularly in relation to criminal offences. The defence of provocation forces the courts to consider the familiar question: who is the ordinary person?

Now more than ever, it seems the ordinary person in the dock can no longer be regarded as simply ‘the man on the Clapham omnibus’.

The defence of provocation Provocation has two elements. Firstly, the accused is required to have actually lost his or her self-control due to the provocative conduct of the deceased. Second, the jury must be convinced that the provocative conduct would have led an ordinary person in the position of the accused to have lost his or her self-control to the same extent so as to form the intention to kill.

The former element is characterised as subjective, although it is unclear which of the accused’s individual attributes should be considered. The latter element is primarily objective, with age therefore only being the relevant consideration.1 However, it has been suggested that ethnic diversity should be taken into account by a jury when deliberating as to whether an ordinary person would have lost self-control to the same extent as the accused.

The not so ordinary person The arguments that support retaining objectivity in the second limb of the defence are persuasive insofar as they purport to emphasise the need for equality before the law.

However, it appears that much of the onus lies with the jury to consider ethnic derivation at the instruction of the trial judge. Where an accused has pleaded the defence of provocation, judges have previously instructed juries to consider whether an ‘ordinary ethnic person’ in the

THE PROVOCATION DEFENCE AND CULTURE

“One might ask: how can a juror relate to and understand the response of an ‘ordinary ethnic person’ if they do not share the same values? accused’s position would have reacted to the

ethnic people to provocation.

is relevant to the second limb of the

extent of the accused.

Are we widening the scope of

defence,

provocation too far?

outside the judiciary and in the hands

The highly contentious case of R v Dincer [1983] 1 VR 461 involved a Turkish Muslim

In order to alleviate the issues

perhaps

the

solution

lies

of Parliament to abolish the objectivity

man who stabbed his daughter during a

associated

of

element altogether.

confrontation

a

understanding as to the offender’s

Where to now?

wishes.

cultural matrix, the court may hear

Above all, it should be noted that

Controversially, the trial judge instructed

evidence from witnesses of the relevant

provocation requires that the accused’s

the jury to consider the ethnic and religious

ethnic community. Such witnesses may

response is proportionate to the alleged

background of the accused when assessing

present their views as to if the reaction

provocative conduct and that the defence

whether an ordinary person in his position

of the accused was typical of someone

will not simply succeed in light of the

relationship

concerning against

her

her

pursuing

parents’

with

a

juror’s

lack

would have reacted similarly.2 Instructing the

of their ethnicity. However, there is no

accused’s ethnic background. Further,

jury to consider ethnicity should hypothetically

standard to determine such evidence

even where the defence is successful,

result in greater fairness where cultural factors

as authoritative, and in accepting it,

the accused only receives a reduced

could prompt specific reactions. Yet, although

the courts are potentially widening the

sentence of manslaughter, still attracting

the jury should represent a cross-section of

scope of the defence much further than

a term of imprisonment. In reality, it

society, this is not always, or even usually, the

was intended. This would undermine

seems that considering ethnicity within

case. One might ask: how can a juror relate to

the objectivity required in order for the

the defence of provocation may not

and understand the response of an ‘ordinary

defence to succeed.

assist an accused, as it would necessarily

ethnic person’ if they do not share the same values?

3

In Stingel v The Queen (1990) 171

involve an understanding of particular

CLR 312, the majority of the High Court

cultural values, which both judge and

If the average juror cannot empathise

restated the principle that provocation

jury may be lacking. At present, this has

with the accused’s response, the direction

will not succeed as a defence unless an

not been addressed by mandatory cross-

to consider ethnicity may therefore only

ordinary person could have responded

cultural training, although this would be

perpetuate cultural stereotypes and social

in the same way as the accused. This

vital if the scope of the second limb of

divides, not overcome them, as violent conduct

confirms that objectivity is essential

the defence were to be extended.

would become synonymous with specific

for the ordinary person test. The High

These days it seems that ‘ordinary’

ethnicities. Unlike battered women’s syndrome

Court subsequently affirmed this view in

is a manifestly inadequate description

that has been accepted by the courts on a

Masciantonio v R (1995) 69 ALJR 598.

for the average Australian who is far

proven psychological basis, there is no scientific

Interestingly,

prior

to

4

Stingel

removed from ‘the man on the Clapham

evidence that justifies separate standards of

attributes such as ethnicity, gender

omnibus’.

general conduct due to varying reactions by

and physical disability were relevant

to discourage discrimination against

to the second limb of the test if they

minorities by considering ethnicity in the

had a bearing on the gravity of the

defence of provocation, we have in fact

provocation so as to have induced the

opened the doors for the accused to be

ordinary person to form the intention to

subject to unfair prejudice. How the law

Ironically,

in

an

attempt

kill. Whilst Stingel and Masciantonio

will progress in dealing with this issue

are binding in Australian jurisdictions,

remains to be seen.

interpretations by state appellate courts

1.

seem evermore fraught with uncertainty

2.

3.

4.

5.

6.

7.

5

6

about the extent to which the accused’s characteristics should be considered in applying the ordinary person test.7 In light of the handful of judgments that have considered whether ethnicity

The Full Bench

Masciantonio v R [1994] 1 VR 577; (1993) 69 A Crim R 258 at 588-594 R v Dincer [1983] 1 VR 461 per Lush J .

R v Saliba (1986) 10 Criminal Law Journal 420.

Ibid.

Ibid.

(1995) 69 ALJR 598.

See Moffa v R (1977) 13 ALR 225; R v Webb (1977) 16 SASR 309; R v Dutton (1979) 21 SASR 356.

33

Q & A: MAREE JENNINGS

Q & A with Maree Jennings: Indigenous justice Interviewee profile

After hearing about the inspirational work of Maree Jennings

Name: Maree Jennings

and her engaging appearance at the Speaker Series, Francesca Elias

Relevant experience: Maree has extensive experience in

Arciuli contacted Maree to ask some

circle sentencing, including sitting

questions of her own.

on a Circle Panel and managing Circle Sentencing operations in

The advantages however are endless and impact more

Mt Druitt. She is currently the Acting Manager of Policy

than just the offender. Victims get to hold the offender

and Performance of the Aboriginal Services Division in the Attorney General’s Department.

34

accountable for their actions and tell how the offence has impacted their lives. It’s an opportunity for the offender

Maree has responded from a personal perspective in answering these questions and is not representing the opinions of the Department of the Attorney General and Justice in her response.

to be open about their life, what caused them to offend

Q. In what circumstances should an Indigenous

could flow onto the family of the offender and break that

offender’s ethnicity relieve them of being subject

cycle of disadvantage). It also allows for a type of cultural

to the same sentencing principles as the rest of the

practice where Elders and Respected people are gathered

community?

to administer justice and hold the offender to account to

Ethnicity shouldn’t relieve anyone from facing the consequences

restore harmony back in the community and confidence in

of their crime, what needs to be considered is the history of

the justice system.

and seek help to address the underlying issues, (this

the individual’s life events and if by society’s standards their life experience is considered disadvantaged or deprived. When the

Q. A criticism of circle sentencing is that

offender’s life circumstances are taken into consideration the

it requires that the offender enter a guilty

sentence needs to include a means of addressing issues impacting

plea. Does this mean that the system

on the offending behaviour along with the appropriate punishment for the crime.

and how does the Western legal system cater

Q. What are the main advantages and disadvantages of circle sentencing?

The main disadvantage would be the constraints on the number of participants accessing Circle Sentencing. This is because of a few reasons: • It is a voluntary program and the offender must plead guilty and be willing to participate; • the program must work in with the local Magistrates schedule; and • there must be a certain number of Elders/Respected Community people participating in any one particular Circle.

overlooks those who wish to plead innocent for those Individuals pleading innocent?

Circle Sentencing is reflective of restorative justice principles so it would be beneficial to the process if the offender admits guilt. However, the application process does allow for an offender to plead innocent and be found guilty.

The application of a referral to Circle Sentencing whether the offender pleads guilty or innocent is subjected to the Magistrate’s approval. If the Magistrate declined an application to Circle Sentencing, the offender would then continue through the regular court process

The Full Bench

Q & A: MAREE JENNINGS

However…(i)f …(the offender) is not connected to their culture

and be sentenced accordingly.

As Magistrates have discretion within the guidelines to approve

the principles of Indigenous justice will have no value to them

a referral to Circle Sentencing, Elders and respected community

because of their lack of understanding and respect for cultural

members who make up the assessment panel also have a limited

protocol.

delegation to endorse the referral after the Magistrate has given their approval to progress through to assessment.

Q. How have your experiences sitting on a

The Elders/respected community members assess the defendant, Circle Panel, and now overseeing operations in see if there is a connection to community and a respect for the process by the defendant. If the defendant is not from the community or they are disrespectful to the Circle Sentencing process, the assessment panel will decline the application and the matter will be dealt with through the standard court system.

Mt Druitt, shaped your understanding of the delivery of justice?

I don’t see justice about being caught and punished, I think justice has many layers and being remorseful and facing the consequence of your actions is part of justice and providing a

Q. What types of punishments are delivered under Indigenous justice today?

floor for victims to be heard is another means...

I have also seen how powerful Circle Sentencing is when you witness the offender having revelation and truly being

Under Indigenous Justice in NSW through the Circle Sentencing

remorseful for their actions and its affect on another person, and

Program, the punishment is in line with the mainstream sentencing

facing the cause of their actions whether its alcohol or drug use,

laws, however there are other conditions included such as

anger issues, mental health etc.

rehabilitation, counseling or being subject to the direction of the Elders/Circle Sentencing Project Officer or Supervision by the State.

This is all done based on the individual circumstances of the offender.

Indigenous juveniles are 24 times more likely to be incarcerated than non-Indigenous offenders. What other programs, initiatives or alternative justice methods do you think would be most beneficial in order to rehabilitate young Indigenous offenders?

We need to consider the disconnect from the fundamentals of Aboriginal culture, around the responsibilities and obligations that underpinned the harmonious existence of community, which is what Aboriginal culture was pre-colonisation.

Q. How do you think we can best break the cycle of intergenerational recidivism and violence in Indigenous communities?

Rebuilding the foundation of a culture. Disband the destructive social norms that have taken over in our communities such as domestic violence, drugs and criminal behaviours. Have a holistic approach to supporting and servicing families and create new social norms that are based on respect, responsibility and reciprocity.

There are programs operating in local communities that have the mentoring and connection/inclusiveness, which reflect some of the

For the full set of questions

cultural aspects. I do think there is something to be learnt from the

and answers, check out The

principles of these local programs. Justice reinvestment initiatives

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have provided success in putting in place preventative mechanisms…

Combining justice reinvestment elements with cultural principles could have an overwhelming impact on Aboriginal youth caught up in the justice system.

Q. What are the main issues facing the delivery of Indigenous justice in Australia today?

The systemic disadvantage faced by Aboriginal people will always be a contributing factor to the high rate of offending. Access to services and support networks will aid in addressing the disadvantage.

The Full Bench

w w w. f a c e b o o k . c o m / UTSTheFullBench2012

f

35

REVIEW: SPEAKER SERIES - INDIGENOUS SENTENCING

Review

Speaker Series - Indigenous Sentencing: Customary Law AND Circle Sentencing

By Lachlan Ball On 27 March 2013 students gathered to listen to a panel of amazing speakers discuss the role of circle sentencing and Aboriginal law in our Australian legal system.

At law school we learn about the supremacy of regular power as opposed to arbitrary power. It’s the first lesson we’re taught, and it’s an important one. I refer to the rule of law, popularised by A.V. Dicey in the 19th century but pronounced by Aristotle more than two thousand years ago. The rule of law – the notion that every citizen is subject to the law – could be the most important human idea ever put into practice. Along with freedom of election, freedom of assembly and freedom of speech, the rule of law has become the lifeblood of modern democracy.

The first UTS LSS Speaker Series of 2013, however, challenged us to question some of the assumptions we’ve made about the rule of

36

law in Australia. The panelists, Stewart O’Connell, Virginia Marshall and Maree Jennings, submitted that Aboriginal Law was, and always will be, the first law of Australia. On this basis, the speakers suggested that the rule of law – since its arrival in Australia by colonial force – has been a continuing burden to the law and good governance of our nation’s first Indigenous peoples.

Stewart of the Aboriginal Legal Service and the other panelists said that the rule of colonial law doesn’t have to be blind to Aboriginal Law. Stewart used the Aboriginal justice system as an example and said that most non-Aboriginals misunderstood the practice of spearing as a form of pay back. Stewart outlined, however, that Aboriginal Australians use spearing to achieve atonement rather than vengeance. On this basis, Stewart submitted that Local Magistrates should be given more discretion to allow, where appropriate, Aboriginal justice to play out.

No doubt the panelists raised more questions than they answered, but I think they are important questions for aspiring legal practitioners and decision-makers to consider. I was left wondering what legislative, administrative, judicial and other measures can be taken to reconcile the rule of colonial law and the importance of Aboriginal Law. Perhaps we need to start with Constitutional recognition, but this is surely just the beginning. Whatever legislative changes we decide to make, they must be supported by adequate funding and resources to ensure effective implementation.

The Full Bench

CU Â ON VACATION! # & & ( ! # ! !

" ! # " ! ! # & ! " ! " " & $ ! "

%%% &" #"' # " !

DEBATE

Stop. Hammer time.

Should one’s culture, upbringing and beliefs be taken into consideration when they have committed a crime, and resultantly, affect their sentence?

FOR

AGAINST

By Christopher Lisica

38

By Stefanie Costi

It is broadly recognised by sentencing courts that

Should a criminal’s tough childhood upbringing and

all offenders are to be treated equally before the law.

culture serve them a softer sentence on a silver platter?

Nevertheless, in exercising its sentencing discretion, courts

Difficult backgrounds may shed some light on what brought

are obliged to take into account all of the facts relevant to

the criminal from A to B, but it should never be used to excuse

the circumstances of the offence and of the offender: R v

bad behaviour.

Fernando [2002] NSWCCA 28. Therefore, if a nexus exists

Case in point: 18 year old man Nooragha Zadran who,

between one’s offending and their culture, upbringing and

after tossing rocks at police, set fire to a nearby parked car

beliefs, then these are clearly matters which should affect

during the violent London Riots in 2011. In September 2012,

their sentence.

he was found guilty of arson and disorder. However, Judge

The fact that violence and a culture of drug abuse goes

Nigel Seed found that he should not “pay the price” for his

hand in hand with certain communities is a factor that has been

actions because he was the victim of violence as a child in

recognised by the courts: R v Fernando (1992) 76 A Crim R

Afghanistan. Zadran’s solicitors argued that he was suffering

58. Crimes committed by offenders from these environments

from post-traumatic stress disorder, anxiety and depression

are a reflection of the individual’s socio-economic upbringing

and that his parents were both killed when their home in

and in this way they cannot be held wholly accountable for

Afghanistan was bombed. He received a twelve month

their actions. The demonstration of a causal link should not

suspended sentence.

only act to mitigate sentence but should attract more subtle remedies than lengthy custodial penalties as it is in the public interest to see these offenders rehabilitated.

Yes, Zadran undoubtedly warrants our sympathy.

But, he had not been living in Britain for one day only.

He had lived in Britain since he was five. Since he arrived in

For those who have been brought up in certain cultures

Britain, he was in the custody of social services. Yes, it may

that impose particular beliefs upon their members, adherence

not have been the best childhood upbringing but it would

is often non-negotiable. This leads to circumstances of

have been undeniably better than that which he would have

inextricable linkage between an individual’s beliefs and their

endured in Afghanistan.

offending that warrants mitigation. This is particularly the case

Being the victim of a traumatic experience as a boy in

in Aboriginal communities where traditional beliefs cause

Afghanistan should not serve as an excuse for cavorting

offenders to believe that what they are doing is acceptable

around downtown London on a violent rioting spree.

based on their upbringing and understanding of traditional law: R v GJ (2005) 196 FLR 233.

Many of the perpetrators of the London Riots were largely from immigrant families too. Yes, some endured childhoods

Cultural and religious beliefs can also result in adherents reacting more severely to certain stimuli than other offenders.

In Islamic culture the family unit is seen as an essential

of adversity and no, they were not excused from serving a sentence.

Compassion

is

always

necessary

in

the

right

institution and its preservation is part of the code of honour.

circumstances. Yet, the leniency shown to Zadran insults all

The act of adultery within this environment is viewed as both

those who overcome adversity and go on to lead successful

a sin and a crime of the utmost degree. Where a violent

and prosperous existences in society. Zadran spent thirteen

reaction ensues, the courts have shown a willingness to take

years in Britain before the London Riots. He effectively grew

these cultural values into account to make a positive finding

up British. It is my guess that he has always been treated as a

as to provocation: R v Khan (1996) 86 A Crim R 552.

victim, supported and pampered by a system which ensures

Consideration of the above weighs heavily in favour of

that he will never have to take ownership and responsibility

the affirmative argument. Where a causal link can be shown

for his actions. By upholding Zadran’s victim status and

between one’s culture, upbringing and beliefs and the crime

affording him a softer sentence, Judge Seed did not do him

committed then these factors should definitely affect their

or society any favours.

sentence.

A child subjected to trauma and adversity because of his or her culture, upbringing and beliefs, however disturbing or distressing, should not be served a “get-out-of-jail-free-card” for life.

The Full Bench

VERBATIM: LAW SCHOOL HOROSCOPES

LAW SCHOOL HOROSCOPES

Verbatim

By THE TFB EDITORS & PURPORTED PSYCHICS: KEEGAN BEHRENS & JOSEPH ANDRIANO

*Disclaimer – all horoscopes published in TFB are not the official psychic opinion of the UTS Law Students’ Society unless expressly stated. Please consult a professional Fortune Teller/Astrologist in order to confirm or deny these representations.

Law School Overheard

SAGITTARIUS (22 November – 21 December) It’s exam season, which means you’ve been

ARIES (21 March – 19 April)

LEO (23 July – 22 August)

rewarding your study efforts with far too

The ‘Big Shot’. You compose your essays as if

Studying is boring and while we know that

many killer pythons (the worst food you can

you were Charles Dickens, but even he would

there is surely some convoluted judgment you

find within a 2 metre radius of the library).

find your Facebook statuses convoluted. The

should probably read instead, the glorious

You are also addicted to caffeine. The library

only thing bigger than the words you use

aisles of stationary heaven are beckoning

stall coffee man knows your order, your pets’

is your ego, if the synonym function were a

(plus, that’s associated to study right?). You

names and your star sign by heart. What

drug, you’d be Amy Winehouse. Somewhere

will get lost among Officeworks’ shelves that

started as a latte snowballed into a short

along the way you forgot you were a law

stock all your dreams’ desires – coloured

black and now you just have more energy to

student. Some days you go to class in a suit

post its, star shaped paperclips and stickers

procrastinate.

just to pretend you’ve been at work. If Kanye

of Snoopy – your notes will be the envy of

West and Harvey Specter had a love-child,

your fellow eyes-falling-out-of-their-heads-

CAPRICORN (22 December – 19 January)

you’d be the result.

only-awake-due-to-coffee peers. Stock up on

You find yourself “dining out” at dodgy

highlighters, remember: phrases, not pages.

dumplings three, often four times a week. But

TAURUS (20 April – 20 May)

unfortunately you still haven’t perfected the

Your desire to achieve success overwhelms

VIRGO (23 August – 22 September)

soy sauce, vinegar, and chili combination to

any respect you have for others. It is not that

You have started spending your days on

accompany those steamed pork dumplings.

you’re a rude person, you just know you’re

Level 3 of the Library in the hopes that you

Your desire to ease all pain associated with

better than most other people. You purport a

will be surrounded by motivated people who

the thought of exams leads to excess chili,

cool exterior heading into the exams. Ironed

will encourage you to be studious. You were

and you constantly asking the waitresses to

clothes masquerade the sleepless nights and

wrong. You are beating your Tetris high-score

fill up your pot of tea. Don’t be disheartened,

horrifying mood swings. During the exam,

constantly. A “five-minute break” turns into

and keep trying. You will master it. Eventually.

remember the worst thing that can happen

two hours, and you find yourself dreaming

is you fail and don’t get that graduate spot,

about the coloured blocks slotting perfectly

AQUARIUS (20 January – 18 February)

ultimately ruining the rest of your life.

into place. It’s time to find a new form of

Exams are two weeks away. To some, that’s

procrastination, or you may develop RSI.

alarm bells, to you, that’s more than enough

GEMINI (21 May – 20 June)

time to study and watch the whole OC series.

It’s one week before the exam and you’re

LIBRA (23 September – 22 October)

You watch as some around you compile

feeling stressed. Well, it’s not surprising

You catch yourself craving an alcoholic

notes frantically. Your approach to study is

considering you haven’t even bought your

beverage most days, sometimes before

to occupy your precious time with the most

textbooks yet. Procrastination is in your

12pm. Often it’s a beer, but lately it’s a hard-

irrelevant and uninteresting content available

future, Gemini. I suggest you make a cup of

hitting double vodka, lime and soda. You

– horoscopes. In the face of failure, be sure to

tea and watch a movie. Tomorrow holds the

know you need to catch up on sleep but it’s

remember that Suits has taught us that you

possibility that your exam will be cancelled.

too late for that. Head to the Loft to satisfy

don’t need to be admitted to be an Associate

Remember, the probability of a miracle,

those cravings. It’s time you put yourself first.

in a law firm.

SCORPIO (23 October – 21 November)

PISCES (19 February – 20 March )

You are a private learner. You have collected

To your horror, you will find that exams are

CANCER (21 June – 22 July)

several sets of notes by informing your

almost upon you, and you are unprepared.

The best way to learn something is to live it.

friends you have no notes. You obtain your

How did this happen? You were unable to

Ipso facto (by the mere fact) of you objecting

friends answers to assignments by assuring

decide between formatting your notes in

to taking the easy way out, you will have the

them you will send yours. You do not. You

Cambria, size 12 or Times New Roman, size

requisite mens rea (state of mind) to invoke

tell your friends you did not prepare for class

10. I can see tears welling up in your eyes and

stare decisis (a precedent to be followed) for

because you were procrastinating, stalking

terror taking hold of your weary heart. Swim

knowledge and success which nemo dat qui

people on Facebook. The next week, you

upstream fast and you can catch up, Pisces!

non habet (someone else can’t give you if

receive full marks in your quiz. Were you a

However, if the current is just too strong I

they don’t have it themselves). Or something

legal character, you’d be the fraudulent bank

would advise you go back to your bubble,

like that.

in Amadio.

after all, winter is coming. Let the Game of

though infinitesimally small, is not exactly zero.

Thrones escapism begin.

The Full Bench

39

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