New Article Shines Critical Light on Indefinite Detention of People with Disability

On the eve of the release of a major Australian Senate report on indefinite detention of people with disability, a new article by LIRC member Dr Linda Steele provides a critical perspective on indefinite detention in the forensic mental health system by locating these practices in the broader context of the multiplicity of practices of detention of, regulation of and intervention in criminalised disabled bodies.

Steele argues that scholarly and law reform and policy engagement with issues relating to people with disability in the criminal justice system might consider ‘disabling’ forensic detention. ‘‘Disabling’’ forensic detention involves challenging the self-evidence of the meaning of disability in forensic mental health law, and in turn illuminating the significance of this meaning to the possibility and permissibility of forensic detention and other interventions in the bodies of people designated with cognitive impairments and psychosocial disabilities (‘‘people designated as disabled’’).

Steele applies this approach to an examination of a high profile media case study of one individual subjected to forensic detention: an Indigenous Australian woman with Fetal Alcohol Spectrum Disorder, Roseanne Fulton. By examining Fulton’s forensic detention, in the context of her earlier life circumstances and her subsequent journey through various ‘‘alternatives’’ to this forensic detention Steele shows the interrelationships of forensic detention with a range of legal options for punishing, regulating and intervening in bodies designated as disabled and situate these interrelationships in a broader range of issues of violence, institutional failure, social disadvantage, settler colonialism, and ableism. Her central argument is that the ongoing subjection of Fulton to a range of forms of control across her life suggest that the possibility of forensic detention and other forms of punishment of people designated as disabled is not attached to a particular material architectural space or a particular court order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space.

Ultimately, Steele proposes that more directly it is the disabled body that is the space of punishment and the disabled body makes material architectural spaces punitive. A ‘‘reform’’, indeed even an ‘‘abolition’’, approach focused on material architectural spaces of disabled punishment will not interrupt the ongoing processes of control of criminalized people designated as disabled if it does not also acknowledge and challenge the temporal and carnal logics underpinning the carcerality of the disabled body itself.

The article can be viewed here:

Steele’s submissions to the Senate Inquiry on indefinite detention can be viewed here and  here.

New article urges greater feminist engagement with medical violence against women with disability

In an article recently published in a special issue of Australian Feminist Studies, LIRC member Dr Linda Steele and UNSW Chair in Intellectual Disability and Behavioural Support Associate Professor Leanne Dowse draw attention to an overlooked form of violence – medical violence – against a marginalised group of women – women with cognitive and psychosocial disability. In the abstract to the article, the authors state:

We take as our point of intervention one category of violence which sits outside the forms of violence against women which are both currently prohibited by criminal law and the focus of violence against women campaigns: non-consensual medical interventions (or, as we refer to it, ‘lawful medical violence’). By drawing on critical disability studies, particularly feminist disability theory, we argue that lawful medical violence has been rendered socially and legally permissible because of the medicalisation of disabled women’s bodies and the related pathologisation of their behaviour and life circumstances. These processes sit at the intersection of gender and disability, drawing on gendered social norms of ability and sexuality to construct women with disability as genderless and dehumanised, and in turn depoliticising non-consensual medical interventions in these women’s bodies by reconstituting them as therapeutic and benevolent. In order to recognise and contest lawful medical violence as violence against women, mainstream feminist scholars and activists might consider turning to different legal, institutional and spatial sites of violence and challenging deeply embedded divisions and foundational concepts in law related to mental capacity.

Seminar: Sterilisation of Women with Disability, International Human Rights Law and (the Failure of) Australian Law Reform

PRESENTED BY DR LINDA STEELE

12.30 – 1.30pm, Wednesday 9 November 2016

Building 67, Room 202 (Moot Court)

University of Wollongong

Linda Steele is a lecturer in the School of Law and a member of Legal Intersections Research Centre, University of Wollongong, Australia. She was recently a visiting researcher at Osgoode Hall Law School, York University during September-October 2016.

Feminist disability scholars and women’s disability rights advocates in Australia and elsewhere have argued for the prohibition of sterilisation of women with disability. Yet this practice remains legal when consented to by a substitute decision maker or pursuant to the doctrine of necessity. In these legal circumstances sterilisation does not constitute an offence under criminal law and it is not compensable under civil law – sterilisation is a form of disability-specific lawful violence.

For more information and to register your attendance online lha.uow.edu.au/law/LIRC

On Human Rights, Democracy and Dignity: The Legitimacy Problem of a Plebiscite on Same-Sex Marriage

Dr Luis Gómez Romero

 

Last week, the Australian government introduced a bill into parliament aimed at establishing the structure and mechanics of a plebiscite on whether Australia should legalise same-sex marriage. The question to be put to voters will be:

Should the law be changed to allow same-sex couples to marry?

Public funding will be provided to two committees to run a “yes” and “no” campaign. Each committee will be made up of ten members: five MPs and five members of the public. The committees will each be given $7.5 million from the government to support their advertising campaigns in the four weeks leading up to the plebiscite. In addition, the committees will be able to accept donations, but they will only be tax deductible up to a cap of $1,500.

The bill has been received with harsh criticism from several political fronts. The Greens announced their opposition to the plebiscite bill. Bill Shorten had introduced a bill earlier in the week which would have the matter decided by parliament. He accused Michael Turnbull of having “no idea of the harm” a plebiscite would cause “on so many people and their families.” Shorten is thus expected to recommend Labour block the legislation. Liberal senator Dean Smith – who is openly gay – also declared that he will not vote for the plebiscite, but he did this for a very different reason: he regards it as an experiment alien to the Australian constitutional system of parliamentary democracy.

When moving the plebiscite bill in the lower house, Turnbull argued that it was a “thoroughly democratic” way to resolve the issues of conscience related to same-sex marriage. He claimed that opponents were simply concerned the plebiscite would “run the risk of the Australian people giving them the wrong answer.” In Turnbull’s view, however, the answer given by the Australian public to the plebiscite question, “whether it is yes or no, will be the right answer.”

There have also been voices that have supported the plebiscite as the lesser evil in an imperfect world. Professor Graeme Orr, for example, has argued that “[w]e don’t have to love a process or think it ideal to make the most of it.” According to Orr, sometimes there is an issue that representative government “fails to resolve, and which is simple and discreet [sic] enough that a plebiscite is a second-best way through the impasse.” Same-sex marriage would be an issue of this kind.

Mainstream arguments for and against the plebiscite can be summarised in the positions that the two major political parties hold on it. Turnbull said the two arguments that had the “most weight” against the plebiscite were that it was “not part of our traditional parliamentary process” and its cost. Nonetheless, he rejected the view that “Australians cannot be trusted to have a civil conversation, that the Australian public are so immature, so unbridled, so reckless that they cannot be trusted to have a debate.” Shorten, on the contrary, seems to be concerned about the nasty homophobic hate speech a “no” campaign may entail. He said that the decision to include public funding “to give a platform to bigotry shows no interest from the government to work with Labour on this.”

Both Turnbull and Shorten, however, are missing the real legitimacy problem around the plebiscite. As surprising as this may seem, in order to legally enable people under Australian jurisdiction to marry whoever they want, it is irrelevant if Australians are champions of progressive politics or support substantive conservative views on marriage and family. The real question we should be asking is if it is legitimate for the majority of Australian people to vote on potentially excluding a minority from basic human rights.

 

Freedom and Equality of Marriage as Basic Human Rights

Freedom and equality of marriage are basic human rights. According to article 16 (1) of the Universal Declaration of Human Rights (UDHR):

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

Discrimination on the basis of race, nationality or religion is hence specifically forbidden regarding marriage. These are not, however, the only grounds on which discrimination related to marriage is currently forbidden under international human rights law. Article 2 of the UDHR also prohibits any sort of discrimination in the enjoyment of rights and freedoms otherwise set forth in it:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The International Covenant on Civil and Political Rights (ICCPR) similarly recognises the rights to freedom and equality of marriage (article 23(2)), and forbids any form of discrimination both specifically in relation to the rights set in the Covenant (article 2 (1)) and generally regarding the protection against harm and arbitrariness that individuals should be granted under the rule of law (article 26). It is therefore important to understand what the prohibition of discrimination actually means in relation to marriage under international human rights law.

The UDHR recognises a series of rights that were explicit responses to the nazification of the German legal system under Adolf Hitler’s Third Reich (1933-1945).[1] Article 6, for example, establishes that “[e]veryone has the right to recognition everywhere as a person before the law.” In other words, everyone is entitled to the ability to be a bearer of rights, obligations and responsibilities.

This was an unusual right in the 1940s, so the usefulness of its inclusion in the UDHR was repeatedly questioned. The French delegate René Cassin – who was one of the key drafters of the Declaration – explained that the article was necessary because under totalitarian legal systems “persons existed who had no legal personality.”[2] The recognition of legal personality lays down the principle that “everyone has the right to enjoy fundamental civil rights,” and is therefore directed “against modern forms of slavery.”[3] In Cassin’s view, “there would have been no need to reaffirm that a human being could not constitute the property of another human being, had not certain heads of state such as Hitler, sought in the last ten years to revive the ancient idea that an individual considered as a slave had no right to marry, to be a creditor or to own property.”[4]

The rights to freedom and equality of marriage are therefore corollaries to the general right to legal personality, which in turn was a reaction to Nazi law. The Nuremberg Laws that were introduced by the Reichstag (the German parliament) on 15 September 1935 forbade marriages and extramarital intercourse between Jews and Germans.[5] The laws were expanded on 26 November 1935 to include Romani people and Afro-Germans. Persons suspected of having sexual relations with non-Aryans were charged with Rassenschande (literally, “racial shame”) and tried in the regular courts.

Hitler had claimed in his infamous Mein Kampf that marriage was not a human right. “No,” Hitler argued, “there is only one holiest human right, and this right is at the same time the holiest obligation, namely: to see to it that the blood is preserved pure.”[6] In Hitler’s view, it was hence the State’s duty “to lift marriage out of the level of permanent race degradation in order to give it the consecration of that institution which is called upon to beget the images of the Lord and not deformities half-man and half-ape.”[7]

This is the historical reason that impelled the Mexican delegation to the Third (Drafting) Committee[8] to submit a proposal to insert in the first sentence of article 16 (which was article 14 in the Draft International Declaration of Human Rights[9]) the clause “without any limitation due to race, nationality or religion.”[10] In other words, the UDHR specifically forbids discrimination in relation to marriage because of the awareness raised by the Nuremberg Laws on the importance of explicitly establishing universal rights to freedom and equality of marriage. The Mexican delegate Pablo Campos Ortiz justified the Mexican amendment in the following terms:

Mr. CAMPOS ORTIZ (Mexico) said he realized that the prohibition against discrimination which he proposed to add […] was a repetition of article 2. Admittedly, that technical objection existed; but he was convinced that certain ideas should be repeated again and again if the need arose. The prohibition against discrimination, which had always been observed in Mexican history and law, would strengthen the article immeasurably in the eyes of the common man. The declaration was addressed to the common man, not to diplomats and technicians. He urged that the value of such an appeal should override the technical objection. There had been notorious cases of discrimination in marriage, particularly by the Nazis. To repeat the prohibition would strengthen the immediate appeal of the article.[11]

The Mexican amendment was warmly received by several delegates. Alexei Pavlov, the Soviet delegate, pointed out that this proposal was “most opportune” because “in certain parts of the United States, for example, mixed marriages were heavily penalized.”[12] Bodil Begtrup, the Danish delegate, pointed out that the Mexican amendment “made the text of the article clearer and more easily understandable to everyone.”[13] Minerva Bernardino, the delegate from the Dominican Republic, said that the Mexican amendment “was based on the most elementary human justice.”[14] Fryderyka Kalinowska, the Polish delegate, stated that her delegation would vote in favour of the Mexican amendment “because it introduced a fundamental idea inherent in a true concept of democracy.” Since “discrimination of one type led to another,” the Polish delegation thought it logical “to condemn, together with discrimination on grounds of sex, all other forms of discrimination that might affect freedom in marriage.”[15]

In sum, the Nazi discriminatory marriage laws and practices were so abhorred by the drafters of the UDHR that they broke with their policy of not repeating the prohibition of Article 2 and adopted the Mexican amendment by 22 votes to 15 (with 6 abstentions).[16] It is the only outright exception they made to this policy.[17]

The arguments advanced by some of the drafters of the UDHR on the prohibition of discrimination in relation to the rights to freedom and equality of marriage clearly apply to same-sex marriage by analogy. Analogical reasoning plays a very important role in law to resolve issues on which there is no previous authority. Paraphrasing Mrs Kalinowska, as discrimination of one type usually leads to another, it is logical to acknowledge, in positive terms, the right of individuals to marry whoever they want regardless their sexual orientation or, in negative terms, to condemn discrimination against individuals of a specific sexual orientation that affects freedom in marriage.[18]

The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity – developed at a meeting of the International Commission of Jurists, the International Service for Human Rights and other human rights experts at Gadjah Mada University in 2006 – thus correctly identify the recognition of the diversity of families, marriage and other affective partnership forms as a normative principle that necessarily informs the application of international human rights law in relation to sexual orientation and gender identity. In terms of Principle 24 (on the right to found a family), the states shall:

Ensure that laws and policies recognise the diversity of family forms [… and] Take all necessary legislative, administrative and other measures to ensure that in States that recognise same-sex marriages or registered partnerships, any entitlement, privilege, obligation or benefit available to different-sex married or registered partners is equally available to same-sex married or registered partners.

In other words, under international human rights law Australia has the obligation to recognise the right of individuals under its jurisdiction to marry whoever they wish regardless of their sexual orientation and to take all necessary measures to make this possible. The fact that freedom and equality of marriage have not been yet implemented in these terms in Australian law highlights the current relevance of Angadipuram Appadorai’s views on the tenacity of discrimination. Dr Appadorai was the Indian delegate to the Third (Drafting) Committee of the UDHR. He argued that the Mexican amendment was not radical enough to prevent discrimination regarding marriage. “While approving its underlying principles,” Dr Appadorai pessimistically noted, “the Indian delegation did not believe that the Mexican amendment would be sufficient to abolish all discrimination.”[19]

 

Australian Approaches to the Prohibition of Non-Discrimination under the International Bill of Human Rights

Both the UDHR and the ICCPR are constitutive parts of the International Bill of Human Rights.[20] Australia was one of eight main states involved in drafting the UDHR, which was adopted by the United Nations General Assembly in Paris on 10 December 1948. During the procedures around the drafting of the UDHR, however, Australia voted against the Mexican amendment on explicitly prohibiting discrimination in relation to the rights of freedom and equality of marriage established in article 16 of the UDHR.[21]

Australia also agreed to be bound by the ICCPR on 13 August 1980, subject to certain reservations. Among these reservations, Australia originally accepted Article 26 of the ICCPR on the basis that the object of the provision was merely to confirm the right of each person to equal treatment in the application of the law.

In other words, Australia only committed itself to formally apply the law in equal terms to everyone, even if a specific provision substantively discriminated between different classes of individuals on prohibited grounds. This form of protection against discrimination is deeply flawed as it enables the state, for example, to enact special detrimental laws against people of a specific race. An apartheid regime could easily avoid accusations of discrimination by claiming – building on this example – that a law that imposes harsher measures of surveillance and punishment on people of a specific race who consume alcohol is not discriminatory because it is consistently applied among those individuals who have the required (oppressed) racial background, while alcohol consumers from other (privileged) racial backgrounds are consistently exempted of such a strict treatment.[22]

On 6 November 1984, however, Australia withdrew this reservation to the ICCPR. Even though Australia’s international commitments are inconsistent with its domestic constitutional regime,[23] today it should be clear that Australia has accepted before other states in the international community to respect a right to non-discrimination vis-à-vis persons within its jurisdiction.

Australia is therefore formally bound, under international human rights law, to respect, protect and fulfil the right to freedom of marriage without discrimination against individuals of a particular sexual orientation. There is another major problem in relation to the implementation of international human rights law in Australia though. Unless made into domestic law, international human rights law has no legal force in Australia. The traditional Australian view on international human rights law is still that expressed in 1945 by Latham CJ, who noted that “courts are bound by the statute law of their country, even if that law should violate a rule of international law.”[24]

On paper, Australia has ratified the most important human rights treaties negotiated by the international community. Yet, in practice, it has recurrently failed to implement the majority of these treaties into domestic law.[25] Worryingly, there is an increasing disconnection between the high standards Australia professes to pursue and the iniquitous laws and policies implemented by governments that have the effect of eroding human rights or denying Australia’s obligations under international law.[26]

The multiple and virtually insurmountable obstacles for the implementation of the substantive prohibition of discrimination – or its positive counterpart, a substantive right to equality – in Australian domestic law cannot be thoroughly addressed in a blog entry.[27] It should suffice to note, in relation to discrimination on the grounds of sexual orientation, that the UN Human Rights Committee found Australia in breach of the ICCPR as late as 1994 – that is, fourteen years after Australia became a party to this treaty – because Tasmanian laws still criminalised at that time consensual sex between adults.[28] The Committee’s views resulted in the repeal of Australia’s last sodomy laws.

The criticism of UN treaty bodies on Australian laws and policies, unfortunately, has not always been received with similar moral and persuasive authority. Last year, Juan E. Méndez – the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment – reported that Australia has systematically violated the right of asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment, as provided by articles 1 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[29] In response to the scathing criticism of the Special Rapporteur on Australian laws and policies on asylum seekers and refugees, the then-prime minister Tony Abbott simply complained that “Australians are sick of being lectured by the UN.”

It has been no surprise hence that Australia’s second appearance before the UN Human Rights Council’s Working Group on the Universal Periodic Review (UPR) resulted in 140 delegations commenting on Australia’s human rights record and the submission of 290 recommendations by the members of the UPR Working Group on topics that range from the dreadful treatment of asylum seekers to forced sterilisation of persons with disabilities. In relation to discrimination on the grounds of sexual orientation, Iceland, the Netherlands, Spain and Sweden recommended Australia to revise its legislation in order to ensure full equality with respect to marriage.[30] It is worth noting that the Australian government did not plainly accept these recommendations, holding instead that full implementation of freedom and equality of marriage is “pending the outcome of the plebiscite.”[31]

This is not a sound way to address the recommendations that Australia received in relation to same-sex marriage after undergoing the UPR procedure. If the plebiscite is finally carried out, the Australian people will vote on including or excluding from enjoying freedom and equality of marriage those individuals of a sexual orientation different from heterosexuality. This means that the plebiscite expects the Australian people to vote on potentially repudiating a basic human right that Australia has already formally accepted to respect, protect and fulfil through several international human rights instruments. The plebiscite therefore amounts to a violation of human rights that denies the dignity of those individuals who, precisely because of their sexual orientation, have been denied equal protection of law over their sexual and affective partnerships.

 

On Democracy, Dignity and Human Rights

“Democracy” is among the most contested and promiscuous terms in modern political vocabulary.[32] The Greek etymology Demos/kratia translates as “people rule” or “rule by the people.”[33] The promise of the modern democratic state is to secure inclusion, equality and freedom as dimensions of popular sovereignty.[34] Democracy, however, is always haunted by the problems of determining who “the people” is and how it is supposed to rule. In simple practical terms, this problem has been solved by the basic democratic principle that establishes that, where there cannot be universal agreement, matters should be settled according to the will or wishes of the majority.[35]

The majority rule is not unlimited though. There are some matters that paradoxically need to be defended from the majority in order to preserve democracy. In this sense, Jacques Rancière claims that “[d]emocracy can never be identified with the simple domination of the universal over the particular.”[36] Democracy, on the contrary, entails an incessant reconfiguration of the spheres of the public and the private, the universal and the particular, majority and minorities. The “power of the people” is not the power of the majority, but the “equality of capabilities to occupy the positions of governors and of the governed.”[37] Rancière thus defines democracy as “the power of those who have no qualification for exercising power.”[38] In other words, democracy’s ideals of equality and freedom necessarily imply “the count of the uncounted” or “the part of those who have no part” in the distribution and enjoyment of political, economic and social goods.[39]

Human rights are accordingly the rights of the “uncounted” or, as Luigi Ferrajoli puts it, a “law for the weakest” (legge del più debole).[40] This means that, on the one hand, human rights are the rights of those who are substantively deprived of formally acknowledged rights (this is the case, as it has been shown above, of the neglect to fully incorporate into domestic law, regardless the sexual orientation of individuals, the rights to freedom and equality of marriage in Australia) and, on the other hand, the rights of those who are formally deprived of a right, but nonetheless substantively exercise it as if it had been formally acknowledged (this is the case, for example, of those individuals who use freedom of speech to denounce dictatorships that prevent and proscribe freedom of speech).[41]

Human rights, in sum, only have relevance as “the rights of those who have not the rights that they have and have the rights that they have not.”[42] This is the reason why human rights are both revolutionary and counter-majoritarian. Human rights aim at limiting power even in democracies that supposedly grant power to the majority. Article 1 of the UDHR therefore proclaims that “[a]ll human beings are born free and equal in dignity and rights”. The majority cannot decide on matters that, as sexual orientation or sexual preferences, only concern to an individual’s dignity.

The notion of dignity that informs international human rights law is built upon Immanuel Kant’s moral theory. Kant conceived dignity as a moral imperative that guides the actions of individuals by granting them an incontestable, unconditioned and unnegotiable inner worth. Kant formulated the imperative of dignity in the following terms: “Act so that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as means.[43]

In other words, dignity provides us with a sphere of freedom to choose the ends for which we live our lives. Dignity also imposes moral duties on us: it demands from us both to accept responsibility for the ends we freely choose to pursue in our life, and to not use other individuals as mere means for our own ends.

In relation to sexual orientation, dignity involves the freedom of mature and capable individuals – that is, consenting adults – to live their sexuality in the form they wish to, without being subject to the potentially whimsical will or the potentially idiosyncratic judgement of powers of any sort. Dignity also implies the freedom to love and care for those we choose without depending on the grace or being vulnerable to the caprice of others. Regardless of our sexual orientation, we should recognise that there is dignity in living our sexuality and affects as we please even when we are told we should not; and facing the challenges of love, of confidently opening ourselves to other persons, even when we are told we cannot. A plebiscite on same-sex marriage would destroy this dignity by perversely applying the majority rule on a matter that demands emancipation from any form of subordination, and liberation from any form of dependency.

The acknowledgement of the dignity of individuals has major consequences for any conception of democracy. The majority in a democracy cannot use individuals as mere means for ends they have not consented without crushing their dignity. The UDHR, by founding human rights upon dignity, refutes the conception of democracy as a political system based on a series of rules that ensure the omnipotence of the majority. Human rights hence necessarily limit the idea of supremacy of parliament, but they do so in order to protect minorities from the tyranny of the majority. We can establish, drawing from Luigi Ferrajoli’s theses on the complex nexus between democracy and human rights, that if the rules that govern representation and the principle of majority are formal norms with regard to what the majority can decide (sfera del decidibile), then human rights circumscribe what we can call the sphere of the undecidable (sfera dell’indecidibile): of the positive undecidable, i.e., of the prohibitions that correspond to civil and political rights, and of the negative undecidable, i.e., of the public obligations corresponding to economic and social rights.[44]

Let us try to make sense of this formula. The point of having a human right is to get a moral claim protected by law in such a way that factual – political, economic or social –powers cannot encroach upon it.[45] Human rights provide dignity to individuals by both granting them freedom to decide the way in which they want to live their lives and ensuring that they will have the basic material means to achieve their life plans. This means that, in the case of civil and political rights, the majority – either in a plebiscite or the parliament – should not decide to, for example, eliminate the prohibition of torture or legalise indefinite detention. It also means that, in the case of economic and social rights, the majority – either in a plebiscite or the parliament – should not decide not to, for example, grant individuals equal access to education or health services.

A plebiscite on same-sex marriage would ironically lack democratic legitimacy because it refers to a matter of human dignity inscribed in the sphere of the undecidable. Majorities should not decide to deny people of a sexual orientation different from heterosexuality the rights to equality and freedom of marriage. In a democracy, the majority rules – as Henry David Thoreau points out –, “not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest.”[46] Providing the majority power to decide “in all cases” hence “cannot be based on justice, even as far as men understand it.”[47] The principle of dignity that morally informs human rights effectively subverts both the majority rule and the idea of the supremacy of parliament in such a way that, in relation to human rights, we can claim along Thoreau: “[A]ny man more right than his neighbours constitutes a majority of one already.”[48]

 

Conclusion: Why Oppression Is Not Appealing Even When Presented in a Democratic Guise

In Australia, challenging not only the democratic majority rule, but also traditional conceptions of parliamentary supremacy amounts to severe juridical heresy. Human rights, however, are precisely meant to be vehicles of heresy: their aim is to unsettle established traditions and facilitate the revolt of the excluded. Paraphrasing George Orwell we can say that if human rights mean anything at all today, they mean the legal and political means to dispute established structures of power and contest unjust frames of human coexistence as they have been given to us.[49]

Mr Turnbull is wrong when he claims that the answer given by the Australian public to the plebiscite question on same-sex marriage, “whether it is yes or no, will be the right answer.” In formal legal terms, neither the Australian public nor the parliament have legitimate power to exclude people of a sexual orientation different from heterosexuality from basic human rights that Australia has already granted to individuals under its jurisdiction through international human rights instruments it has adopted and ratified. In substantive moral terms, neither the Australian public nor the parliament have legitimate power to ravage the dignity of some individuals by denying them freedom and equality of marriage on the basis of their sexual orientation.

The simplest and most effective way to implement same-sex marriage in Australia consists in having the parliament modify the current legislation in order to make domestic law consistent with Australia’s obligations under international human rights law. We can arguably claim that this was the mandate that Australian people gave their representatives both in the last election and at the time of adopting the UDHR and ratifying the ICCPR. The Australian government thus deserves from the Australian people, as a response to its plebiscite proposal, the powerful reflection furthered by Alexis de Tocqueville on the potential tyranny of majorities that constantly haunts democracies: “For myself, when I feel the hand of power lie heavy on my forehead, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke because it is held out to me by the arms of a million men.”[50]

NOTES

[1] Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press, 1999) 43 ff.

[2] Drafting Committee on an International Bill of Human Rights, Summary Record of the Fourth Meeting, 1st Session, 4th Meeting, UN Doc E/CN.4/AC.1/SR.4 (12 June 1947), 6.

[3] Drafting Committee on an International Bill of Human Rights, Summary Record of the Thirty-Seventh Meeting, 2nd Session, 37th Meeting, UN Doc E/CN.4/AC.1/SR.37 (18 May 1948), 3.

[4] Ibid. Emphasis added.

[5] The two Nuremberg Laws were the “Law for the Protection of German Blood and German Honour” (Gesetz zum Schutze des deutschen Blutes und der deutschen Ehre) and the “Reich Citizenship Law” (Reichsbürgergesetz).

[6] Adolf Hitler, Mein Kampf (Zentralverlag der Nationalsozialistische Deutsche Arbeiterpartei, 1940) 444. All translations are mine unless otherwise indicated.

[7] Ibid, 445

[8] At its 142nd meeting on 24 September 1948, the General Assembly referred the Draft International Declaration of Human Rights to the Third Committee.

[9] Commission on Human Rights, Annex A: Draft International Declaration of Human Rights, 3rd Session, UN Doc E/800 (28 June 1948).

[10] Third Committee, Draft International Declaration of Human Rights: Amendments to Articles 3, 6, 7, 14, 23 And 25 of the Draft Declaration (E/800)/Mexico, 3rd Session, UN Doc A/C.3/266 (12 October 1948) 1.

[11] Third Committee, Draft International Declaration of Human Rights (E/800), 3rd Session, 124th Meeting, UN Doc A/C.3/SR.124 (6 November 1948) 264. Emphasis added.

[12] Ibid, 265.

[13] Third Committee, Draft International Declaration of Human Rights (E/800), 3rd Session, 125th Meeting, UN Doc A/C.3/SR.125 (8 November 1948) 367.

[14] Ibid, 369.

[15] Ibid, 370-371. Emphasis added.

[16] Ibid, 375.

[17] Morsink, above n 1, 89.

[18] In general terms, this is the way in which the European Court of Human Rights has interpreted the nexus between articles 8 (right to private and family life), 12 (right to marry) and 14 (prohibition of discrimination) of the European Convention on Human Rights. Even though the Court has recently established in Chapin and Charpentier v France [2016] ECHR 504 that states have no obligation to open marriage to homosexual couples, this does not mean – as some conservative commenters claim – that there is not an analogous human right to freedom and equality of civil partnership under the European Convention. This decision needs to be read along Vallianatos & Ors v Greece [2013] ECHR 1110 and Oliari & Ors v Italy [2015] ECHR 716. In these cases, the Court respectively found that limiting the availability of civil partnerships only to different-sex couples (in Greece), or neglecting to provide any form of legal recognition to same-sex relationships (in Italy) were violations of article 8 in conjunction with article 14. The Court therefore expects states parties to provide proper legal recognition of some kind to same-sex partnerships, even if it is not yet prepared to go so far as to oblige them to introduce marriage on equal terms for different-sex and same-sex couples.

[19] Third Committee, above n 13, 371-372.

[20] The International Bill of Rights consists of the UDHR, the ICCPR with its two Optional Protocols and the International Covenant on Economic, Social and Cultural Rights.

[21] Third Committee, above n 13, 375.

[22] Unfortunately, this example is not a product of my warped academic fantasy after being cloistered for several years in the ivory tower, but a reflection of actual Australian legislation. See the Northern Territory National Emergency Response Act 2007 (Cth) and the Stronger Futures in the Northern Territory Act 2012 (Cth).

[23] See, for example, the interpretation of s 51 (xxvi) of the Australian Constitution – i. e., the so-called race power – advanced by the High Court in Kartinyeri v Commonwealth (1998) 195 CLR 337.

[24] Polites v Commonwealth (1945) 70 CLR 60, 69.

[25] See, for example, Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 2006) 64 ff; and Caroline Fleay, Australia and Human Rights: Situating the Howard Government (Cambridge Scholars, 2010).

[26] Prince Zeid Ra’ad Zeid Al-Hussein – the current UN High Commissioner for Human Rights –, for example, has signalled Australia as a country of concern considering its appalling human rights performance in the last years. The High Commissioner specifically criticised “its policy of off-shore processing for asylum seekers arriving by sea, and its interception and turning back of vessels”, which “is leading to a chain of human rights violations, including arbitrary detention and possible torture following return to home countries.” See Zeid Ra’ad Al-Hussein, ‘Opening by Zeid Ra’ad Al Hussein, United Nations High Commissioner for Human Rights, at the Human Rights Council 27th Session’ (Speech delivered at the opening of the Human Rights Council 27th Session, Geneva, 8 September 2014).

[27] Dawson J, for example, established that “[i]t may be observed that a degree of equality was lacking in the free agreement [… that resulted in the Australian Constitution], in that the referendum expressing that agreement excluded most women and many Aboriginals […] the important thing is that the Constitution to which the people agreed plainly envisages inequality in the operation of laws made under it.” See Kruger v Commonwealth (1997) 190 CLR 1, 67.

[28] Human Rights Committee, Communication No. 488/1992, 50th sess, UN Doc CCPR/C/50/D/488/1992 (4 April 1994) (Toonen v Australia)

[29] Human Rights Council, Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez: Addendum-Observations on Communications Transmitted to Governments and Replies Received, 28th sess, Agenda Item 3, UN Doc A/HRC/28/68/Add 1 (6 March 2015) [16-31].

[30] Working Group on the Universal Periodic Review of the Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, 31st sess, UN Doc A/HRC/31/14 (13 January 2016) [136.220, 136.222-136.224].

[31] Working Group on the Universal Periodic Review of the Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia: Addendum: Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review, 31st sess, UN Doc A/HRC/31/14/Add. 1 (29 February 2016) [40-41].

[32] Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015) 19.

[33] Ibid. See also Anthony Arblaster, Democracy (Open University Press, 3rd ed, 2002) 59 ff.

[34] Brown, above n 32, 42.

[35] Ibid, 67.

[36] Jacques Rancière, La Haine de la Démocratie (La Fabrique, 2005) 69.

[37] Ibid, 56.

[38] Jacques Rancière, “Who is the Subject of the Rights of Man?” (2004) 103 South Atlantic Quarterly 296, 304

[39] Ibid, 305.

[40] Luigi Ferrajoli, Principia Iuris: Teoria del Diritto e della Democrazia (Laterza, 2007) vol 2, 57-62.

[41] Rancière, above n 38, 304.

[42] Ibid, 302.

[43] Immanuel Kant, Grundlegung zur Metaphysik der Sitten, in Preußischen Akademie der Wissenschaften (ed), Gesammelte Schriften (Georg Reimer, first published 1785, 1903 ed), vol 4, 385, 429.

[44] Ferrajoli, above n 40, vol 1, 819-824.

[45] This is, mutatis mutandis, the idea behind the Dworkinian conception of rights as trumps. See Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978) ix.

[46] Henry David Thoreau, ‘On the Duty of Civil Disobedience,’ in Cynthia Brantley Johnson (ed), Walden or, Life in the Woods and On the Duty of Civil Disobedience (Pocket Books, first published 1849, 2004 ed) 361

[47] Ibid

[48] Ibid, 371

[49] See George Orwell, “The Freedom of the Press” (15 September 1972) Times Literary Supplement 1037

[50] Alexis de Tocqueville, De la Démocratie en Amérique (Garnier-Flammarion, first published 1840, 1981 ed) vol 2, 19.

 

LIRC Researchers Receive Important Grant for Domestic Violence Service Evaluation Project

Evaluation of the YWCA NSW Shoalhaven Domestic Violence Intervention Service

Professor Nan Seuffert, Director of the Legal Intersections Research Centre (LIRC) and Dr Trish Mundy, Senior Lecturer in the School of Law and LIRC member, were recently successful in securing a $50,000 Impact Grant from the National Australia Bank (NAB) Community Grants Program 2016.  Professor Seuffert and Dr Mundy have been engaged by the YWCA NSW to undertake an evaluation of the Domestic Violence Intervention Service (DVIS) based in Nowra and servicing the wider Shoalhaven region.

The DVIS is unique in its crisis intervention model in that it is the only community-based domestic violence service in Australia that is physically co-located within a police station. Its goals are to work closely with police, Domestic Violence Liaison Officers, police prosecutors and other key community based agencies with the aim of enhancing support and outcomes for women and children experiencing domestic and family violence. This funding has been secured to measure the impact of this colocation model on the outcomes for women and children experiencing domestic and family violence. This is an exciting project and one that will have significant benefits for women and children experiencing domestic and family violence and in enhancing knowledge of ‘best practice’ in the context of crisis intervention service delivery.

 

New article takes a critical and empirical approach to questioning diversion of people with disability from criminal justice system

Linda Steele, Leanne Dowse & Julian Trofimovs, ‘Who is Diverted?: Moving Beyond Diagnosed Impairment Towards a Social and Political Analysis of Diversion’ (2016) 38(2) Sydney Law Review 179-206

In an article recently published in Sydney Law Review, LIRC member Linda Steele together with UNSW collaborators Assoc Prof Leanne Dowse (chair in Intellectual Disability and Behaviour Support) and Julian Trofimovs (researcher) have questioned the extent to which court diversion can address the complex social marginalisation of people cognitive impairment and mental illness in the criminal justice system. The article makes this argument via quantitative analysis of data on the diagnostics, demographics and criminal justice pathways of a cohort of individuals diverted pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The data is drawn from a large linked dataset which forms part of the ARC funded project Australians with MHDCD in the CJS Project. The dataset consists of a ‘cohort of 2731 men and women,41 both Indigenous and non-Indigenous, who have been in prison in NSW and whose cognitive impairment and/or mental illness diagnosis is known. The quantitative analysis examines aspects of identity including Indigeneity, gender and age; as well as criminal justice involvement over time in order to provide a nuanced account of the operation of diagnosed impairment and its intersections with social disadvantage and criminal justice pathways for individuals who are the subject of s 32′. Key findings indicate that many of the diverted individuals in the sample experience social disadvantage such as homelessness, time in out of home care as children and poor educational outcomes. Moreover many experience early and ongoing criminalisation, including time with juvenile justice and multiple prison episodes as well as contact with police via civil mental health legislation. On the basis of the key findings from the empirical data, the authors conclude that while diversion ‘might arguably perform an important function by identifying people in the community who need help and linking them with services, we have argued that this function is limited because diversion acts only on impairment (in a narrow, diagnostic sense) and its consequences, and obviates attention to the complex social production of impaired offenders.’

This work was supported by an Endeavour Foundation Endowment Challenge Fund Student Grant awarded to Linda Steele.

Abstract

Diversion from the criminal justice system pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is increasingly being deployed as a key response to the issues facing people diagnosed with cognitive impairment and/or mental illness in the criminal justice system. The ‘medical model’ of disability, which is focused on disability as an internal, individual pathology, contributes to the marginalisation of people with disability, notably by providing a legitimate basis for the legal and social regulation of people with disability through therapeutic interventions. The scholarly field of critical disability studies contests the medical model by making apparent the social and political contingency of disability, including the intersection of disability with other dimensions of politicised identity (such as gender and Indigeneity) and the role of law and institutions (including the criminal justice system) in the disablement, marginalisation and criminalisation of people with disability. Applying critical disability studies to s 32 problematises the characterisation of the legal subject with diagnosed impairment and this provides a new basis for questioning the coercion of people with disability through the criminal justice intervention of diversion. An empirical analysis of the diagnostics, demographics and criminal justice pathways of a sample of individuals who have received s 32 orders provides some material foundations for a more politically and socially directed analysis of s 32 and for a broader reflection on the role of the criminal law in issues facing people diagnosed with cognitive impairments and mental illness in the criminal justice system.

Dr Linda Steele

The humanitarian quest for accountability: Examining the role of UNHCR

LIRC researcher Dr Niamh Kinchin contributes to a new book on UNHCR accountability

UNHCR 2015: A difficult crisis

The European refugee crisis has been a difficult experience for the United Nations High Commissioner for Refugees (UNHCR). On the one hand, UNHCR has been criticized by civil society and the humanitarian community for not being present on Greek islands. On the other hand, the organization has experienced difficulties in negotiating this access with Greek authorities. In addition to criticism of UNHCRs actions/inactions in Greece, the organization also faced criticism for not doing enough to push states across Europe to admit a bigger responsibility for the refugee crisis, and to accept greater numbers of refugees for resettlement.

In the fall of 2015, there was explicit criticism of previous High Commissioner of Refugees, Antonio Guterres, as it was argued that his ambitions of becoming the new United Nations Secretary General was getting in the way of confronting European states more explicitly to  ensure that they live up to their responsibility as stated in the 1951 Refugee Convention:

“The heads of U.N. agencies with ‘well-nourished careers’ prefer to ‘put out cutesy heart-warming videos’ about individual refugees rather than criticize governments… They want another U.N. job … And they won’t get it if they piss governments off. You have to start shaming governments. That’s how things get done.”

Laying a new path under high commissioner Grandi?

Now things may be changing. Prior to the much debated EU-Turkey refugee deal, the new UN High Commissioner for Refugees, Filippo Grandi, stated that the potential refugee bottleneck in Greece was a major topic of discussion. And during a February 2016 visit to Athens, he took the opportunity to criticize “the border closures and the inability of European countries to face the refugee crisis with generosity and unity”. Only weeks later (in March 2016), the organization explicitly distanced itself from the EU-Turkey plan, as potentially undermining the tenants of international refugee protection.

Arguably this marks a shift in how UNHCR interprets and enacts its function as a key international actor tasked with the important job of holding states accountable to their commitments to international refugee protection (1951 Convention). And now that the EU-Turkey deal has become is a reality, it is certainly worth noticing that UNHCR was not part of the deal making. Instead, UNHCR is now looking to the future: “Let’s see what the European courts has to say on this,” said Vincent Cochetel, who is leading the UNHCR’s response to the crisis in Europe. A deal might be legal if Turkey overhauls its asylum system and guarantees that those returned are not kept in detention and are given a proper chance of claiming refuge, which is not currently the case, says Mr Cochetel. Other than Europeans, only Syrians have any right to claim shelter in Turkey under its current system. Accordingly, in line with UNHCR’s policy on opposing mandatory detention, the organization has suspended provision of transport to and from detention sites on Greek islands, and has also expressed concern that Greece may have deported asylum seekers by mistake, in violation of international law.

Good Enough Accountability as existential challenge

These contradictory examples illustrate what amounts to an existential challenge not only for UNHCR, but for the humanitarian enterprise as a whole, namely the quest for good enough accountability.  In situations where the host state may be unable or unwilling to protect civilians, humanitarians step in to provide governance, care and protection. With a record-high number of humanitarian emergencies and displaced individuals worldwide, there are more humanitarian organizations doing more things in more places than ever before. They are not elected and are mostly unencumbered by legal obligations towards the communities they proclaim to work for. While the humanitarian sector has developed its own ‘accountability-industry’, humanitarians continue to express concern about how accountability-initiatives are skewed towards donors, at the expense of accountability towards crisis-affected communities and individuals. At the same time, there is deep disagreement about what good enough accountability might look like, how it might be achieved and what resources humanitarians and donors would be willing to invest towards reaching a satisfactory level of accountability.

A knowledge gap: Conceptualizing the history and ‘technologies of accountability’

Despite the key importance of accountability for the legitimacy of humanitarian action, inadequate academic attention has been given to how the concept of accountability is evolving within the specific branches of the humanitarian enterprise. Up to now, there exists no comprehensive account of what we label the ‘technologies of accountability’, the effects of their interaction, or the question of how the current turn to decision-making software and biometrics as both the means and ends of accountability may contribute to reshaping humanitarian governance.

In a recent book, UNHCR and the Struggle for Accountability: Technology, Law and Results-Based Management (Routledge Humanitarian Studies series) we explore UNHCR’s quest for accountability by viewing the UNHCR’s accountability obligations through the web of institutional relationships within which the agency is placed (beneficiaries, host governments, implementing partners, donors, the Executive Committee and UNGA). The book takes a multidisciplinary approach in order to illuminate the various layers and relationships that constitute accountability and also to reflect on what constitutes good enough accountability.

Table of Contents:

  • Introduction: The Quest for an Accountability Cure Katja Lindskov Jacobsen & Kristin Bergtora Sandvik
  • UNHCR and the Complexity of Accountability in the Global Space Niamh Kinchin
  • Advancing UNHCR Accountability through the Law of International Responsibility Maja Janmyr
  • Narratives of accountability in UNHCR’s refugee resettlement strategy Adèle Garnier
  • UNHCR and accountability for IDP protection in Colombia Miriam Bradley
  • Universalizing the refugee category and struggling for accountability: the every-day work of eligibility officers within UNHCR Marion Fresia and Andreas von Känel
  • Accounting for the Past, A history of refugee management in Uganda, 1959-64 Ashley B. Rockenbach
  • How accountability technologies shape international protection: results-based management and rights-based approaches revisited Kristin Bergtora Sandvik
  • UNHCR, Accountability and Refugee Biometrics Katja Lindskov Jacobsen

Editors: Kristin Bergtora Sandvik is an Associate Professor at the Department of Criminology and Sociology of Law at University of Oslo and a Senior Researcher at PRIO; Katja Lindskov Jacobsen is Senior Researcher at The Centre for Military Studies at Copenhagen University, Department of Political Science.

Reposted from IntLawGrrls

Aboriginal and Torres Strait Islander Perspectives on the Recurrent and Indefinite Detention of People with Cognitive and Psychiatric Impairment

First Peoples Disability Justice Consortium Submission to the Senate Inquiry on the Indefinite Detention of People with Cognitive and Psychiatric Impairment

Dr Linda Steele and Professor Elena Marchetti were recently invited to contribute to a Senate Inquiry on indefinite detention of people with cognitive and psychiatric impairment, as part of a consortium of Aboriginal and Torres Strait Islander community organisations, and disability, justice and legal researchers. The final version of the submission can be found at www.aph.gov.au/DocumentStore.ashx?id=1206767c-a74a-4317-a107-b44ad2e8411b&subId=412059. The submission focuses on how the indefinite detention of people with cognitive and psychiatric impairment is experienced by Aboriginal and Torres Strait Islander people once they come into contact with the criminal justice system. Many Aboriginal and Torres Strait Islander people have some form of disability from early childhood, which is often undiagnosed meaning that these individuals do not have access to the support they might require, leaving Aboriginal and Torres Strait Islander children at risk of being institutionalised and therefore ‘indefinitely detained’, through child safety and protection policies and other justice agencies. The submission emphasises the importance of taking an intersectional approach that considers a person’s disability in conjunction with their Indigeneity in addressing the problems that arise from detaining and controlling children and adults who have a form of cognitive and psychiatric impairment. The sixteen recommendations focus on a life trajectory model to highlight the need for a holistic approach when trying to find solutions to the problem of recurrent and indefinite detention.

Professor Marchetti’s contribution, which was co-authored with Associate Professor Thalia Anthony from the Faculty of Law, UTS, emphasised the need for a systemic understanding of mental health issues and how recognition and strengthening of a person’s cultural identity is utilised through the provision of community based services and the support of Elders. Using the Canada Gladue Reports as a model, Anthony and Marchetti’s contribution highlights the need for cultural pre-sentence reports to inform sentencing courts of the complex health needs Aboriginal and Torres Strait Islander people who come into contact with the criminal justice system often require. Allowing Elders and Community Representatives to participate in the sentencing process provides the court with information about an offender’s rehabilitation and support needs. To advance the decarceration of Aboriginal and Torres Strait Islander people with mental illnesses, Anthony and Marchetti recommend that systemic issues of institutional discrimination, socio-economic disadvantage, access to early-intervention services and greater specialised sentencing options be addressed.

Dr Linda Steele’s contribution focused on diversion as an ‘alternative’ to indefinite detention. Steele argued that diversion should address the deep entrenchment in the criminal justice system of Indigenous Australians with cognitive and psychiatric impairment and their indefinite cycling in and out of multiple forms and episodes of punishment over their lifecourse. Diversion which has punitive, coercive and/or supervisory dimensions will not only fail to address the issues of entrenchment and cycling but likely exacerbate them. Diversion should trigger appropriate disability and social support, rather than be an out-of-prison form of punishment. As a signatory to the Convention on the Rights of Persons with Disabilities the Commonwealth has an obligation to ensure diversionary schemes do not breach human rights, including the right to equality and non-discrimination.

In an individual academic capacity Steele also made an additional submission separate to the FPDN submission which is focused on the discrimination inherent in forensic and civil mental health detention.