In Conversation with Peter Callaghan SC – an Update on Judicial Discretion and Criminal Justice in Queensland

Last year, the Editors of Pandora’s Box interviewed Mr Callaghan (Barrister-at-Law, BA LLB(Hons) Qld.) on aspects of the criminal justice legislation introduced by the then Queensland government.[1] The political and legal landscape in Queensland has changed significantly over the past eighteen months, and so Pandora’s Blog asked Mr Callaghan to update us on the present state of affairs.

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PB:    What aspects of the Newman Government legislative agenda were of concern to you, and have the recent changes in Queensland politics evidenced an accompanying change in criminal justice policy? What approach should be taken to any reforms, and what is the role of the legal profession in any ensuing debate?

PC:    The Newman/Bleijie government enacted a radical legislative agenda that alarmed conservatives and progressives alike. One troubling aspect of this agenda was its disregard for the concept of judicial discretion.

Judicial discretion was attacked on different fronts by more than 20 pieces of legislation. Some were of no lasting consequence, such as provisions that applied during the G20. But much affected, and continues to affect, laws that are applied every day by Queensland Courts, particularly in the administration of criminal law.

Some statutes introduced mandatory sentences. Others created requirements as to how a sentence is to be served. Judicial officers were prevented from having regard to certain principles that might otherwise have been applicable to particular sentences. For reasons I cannot understand, some laws now forbid regard being had to an individual’s circumstances - which is the very reason we have judicial officers deciding cases in the first place.[2]

All this and more was introduced without anything in the way of evidence based research to support a need for it, was preceded by minimal or no consultation, and was processed by Parliament with indecent haste.

There were aspects of the program that I thought were cynical and even - such as in the selection of the acronym “VLAD” - childish. The case to be made for an Upper House could reasonably have been thought redundant; it took an onslaught of this kind to revive it.

As a result of all that, the incoming government faced a difficult task. I think they are trying to address the many issues that might have been canvassed had there been a proper debate in the first place, and to that end have ordered reviews that will no doubt be very helpful.

But to my mind there is no need for an Inquiry to recommend the restoration of judicial discretion. As a starting point, in many cases the only amendment that is required is the replacement of one word in statutes that say a judicial officer “must” do something. Change “must” to “may” , and that Act will not be nearly as offensive.

So as helpful as the commissioned reviews will be, I am concerned that their ambit does not seem to embrace examination of all of the offending legislation. It follows that there is a need for the legal profession to keep agitating for reform, and in particular for amendment to some of the legislation that does not enjoy the profile of laws such as the VLAD, but which continues to blight the administration of justice in this State on a daily basis.

PB:    Earlier this month, the Chairperson of the Crime and Corruption Commission, Alan McSporran QC, was critical of a number of the changes made to the organisation’s function and powers last year.[3] Do you believe these criticisms are justified?

PC:    I thought that one of the most alarming aspects of the previous government’s agenda was its ambition to abolish the need for bipartisan support in the appointment of a Chairperson of the Crime and Corruption Commission. My concern was shared by many. On behalf of the Law and Justice Institute I drafted a petition that, in the short time that was allowed for debate on the Bill, attracted well over 10,000 signatures. It is fair to say that some of those who signed were “rusted on” Conservatives who recognised that this issue had nothing to do with party politics.

So great was the concern, so intense was the energy it generated that this was one issue on which the government did reverse its position. And eventually, thankfully, Mr MacSporran was appointed.

The individual criticisms that he has aired involve complex issues. Detailed consideration of them is probably beyond the scope of this exchange. It is, however, important to reflect upon and give thanks for the fact that we have a Chairperson who has independence, authority and confidence enough to give voice to them in the first place.

PB:    Another legal development in recent months has been a growing movement towards a Queensland Human Rights Act. Would this be a desirable development in the context of the issues we have discussed?

PC:    The desirability of a Human Rights Act is a topic on which reasonable minds may differ. It would be nice to think that any debate about this issue could be conducted, on both sides, carefully and respectfully. It should not be hurried.

But in the meantime, the legislation to which I have referred (above) remains part of the law of Queensland.  It would be disappointing if debate about a Human Rights Act distracted attention from that fact. I would rather discussion about a Human Rights Act was deferred until the mischief wrought by the last Parliament has been redressed.

[1] See (2014) Pandora’s Box Law Journal 1.

[2]  A comprehensive review was undertaken for the LJIQ by University of Queensland students Evelyn Hoare and Nathan Lindsay, theirpaper ‘Legislative Encroachment on Judicial Discretion in Queensland’ is available at ljiq.asn.au

[3] See, eg. http://www.abc.net.au/news/2015-10-12/corruption-watchdog-concerned-newman-era-reforms-reduced-power/6848386

In Conversation with Prof. Brad Sherman: D'Arcy v Myriad Genetics Inc (2015) and the Future of Australian Patent Law

Prof. Brad Sherman

Professor Brad Sherman is an academic of the T.C. Beirne School of Law, and an alumnus of the London School of Economics and the University of Cambridge. His expertise includes the historical, doctrinal, and conceptual development of intellectual property law.

Prof. Sherman sat down with the JATL blog editor, Jocelyn Bosse, to discuss the implications of the recent High Court decision, D'Arcy v Myriad Genetics Inc [2015] HCA 35, which was handed down on the 7 October 2015.

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Jocelyn: "The High Court of Australia recently held that an isolated human gene was not a patentable invention within the meaning of the Patents Act 1990 (Cth). The judgment overturns the unanimous decision of the Federal Court in 2014. Were you surprised by the decision?"

Brad: "To some extent, yes. I was surprised by the willingness of the Court to seriously engage with the legal issues for the first time. In some ways, I was not surprised by the style of argument used - particularly by the majority - which seemed to avoid the question about the meaning of "invention." Nevertheless, I was pleased with the decision."

Jocelyn: "During the proceedings, the Court seemed rather concerned with the wide scope for potential unintentional infringement of the patent. In the joint judgment of French CJ, Kiefel, Bell and Keane JJ, it was noted at [8] that “There is a real risk that the chilling effect of the claims, on the use of any isolation process in relation to the BRCA1 gene, would lead to the creation of an exorbitant and unwarranted de facto monopoly on all methods of isolating nucleic acids containing the sequences coding for the BRCA1 protein.” Is not this more an issue of ‘fair basing’ and less a question of ‘patentable subject matter’?"

Brad: "Yes, the Court was particularly concerned with the question of unintentional infringement of the patent. I think there are several things to bear in mind here. One is that recent research by Professor Dianne Nicol of the University of Tasmania has shown that the suggestion that gene patents have a 'chilling effect' is not supported by the evidence. But, having said that, there has been quite a bit of evidence to show that Myriad, in other jurisdictions, had an impact on the ability for women to access the types of services that they want, such as breast cancer screening at an affordable cost. So, it does have unexpected effects.

In relation to 'fair basing,' one of the things about patentable subject matter in Australia - and, for that matter, the USA and Europe - is that 'subject matter' has been conflated with other types of criteria. For example, in Europe, questions as to subject matter (particularly in the United Kingdom) are very closely linked to questions of inventive step. At the European Patent Office, they are taking subject matter very seriously. They ask a broad question: the "any hardware" approach. They ask whether it is "technological" - it does not matter whether it is new, old, or inventive. On the other hand, in Australia, we conflate all those things together, which is one of the reasons why it is so problematic.

The decision does introduce fair basing, but that is partly a consequence of how the case was argued. I do not know why it was argued as 'subject matter' in the first place."

Jocelyn: "Do you see that conflation changing in the future?"

Brad: "I don't think so. I would like it to happen, since the law would be much clearer if we adopted the approach of the European Patent Office. That would be on the condition that we took the other criteria of patentability, like inventive step, fair basing, sufficiency, etc. seriously. We do not take them seriously in Australia at this stage. The other problem is that it shifts the emphasis onto the Patent Office, so it is not as transparent."

Jocelyn: "Nettle and Gageler JJ argued that the manner of manufacture test invokes a requirement for an “inventiveness threshold” as well as the requirement for artificiality and economic usefulness.  Could this be a bit of a conflation of the question of ‘patentable subject matter’ with the other criteria for patentability, like ‘obviousness’ and ‘industrial applicability’?"

Brad: "In the same way in which the focus on 'fair basing' conflates questions of patentable subject matter, I agree that the "inventiveness threshold" also imports obviousness into patentable subject matter. I believe that is inherently problematic. When you are dealing with 'inventive step,' the parties can bring  in experts and you can argue on the particular facts of the case. We are mixing different issues here: on the one hand, patentable subject matter is about a class of inventions (e.g. genes, computer programmes), but the Court was talking about specific levels of inventiveness. They were moving between different issues. I think it would be much neater and clearer if the law focused directly on one of the two."

Jocelyn: "Although laws of nature are not patentable, purified preparations of naturally occurring microorganisms (e.g. yeasts with brewing applications) had been patented in the USA since Pasteur’s patents in the 1870s right through to the engineered microorganisms in the Chakrabarty case in 1980. Naturally-occurring substances have previously been subject to the test of being an “artificially created state of affairs with economic significance,” although the High Court emphasised in Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd: “Nothing said in the Court's reasons for decision in that case can be taken as an exact verbal formula which alone captures the breadth of the ideas to which effect must be given.”

How does this most recent decision affect the patentability of other naturally-occurring substances?"

Brad: "The decision has important ramifications for the patentability of other naturally-occurring substances, subject to a number of limitations. The key issue about this decision, at least in the minority, was that the judgment of subject matter is done on the basis of difference between nature and artifice. Something is artificial if you can show there is a gap caused by human intervention. By focusing on the genetic dimensions of the gene, rather than the chemical dimensions, the Court could recognise that there was in fact no difference between them, and therefore it was not patentable subject matter.

Going forward, in relation to proteins and other things, it could be that if a protein were created artificially, it would depend upon how it was characterised. They are even more complicated than simply asking whether it's chemical or genetic, so it's even more hybrid. Certainly, I think it suggests that the courts will be much more willing to critically review the patentability of naturally-occurring substances."

Jocelyn: "Gordon J noted that: “Myriad submitted that such a result would put Australia out of step with some of its trading partners including the European Union and the United States of America. That issue, if it is to be addressed, is a matter for the legislature…”

Likewise, French CJ, Kiefel, Bell and Keane JJ stated that: “The proposition that a broad statutory concept applies to a new class of case on the boundaries of existing judicial development of that concept requires consideration of the limits of judicial law-making inherent in common law methodology. Where an affirmative application of the concept is likely to result in the creation of important rights as against the world, to involve far-reaching questions of public policy and to affect the balance of important conflicting interests, the question must be asked whether that application is best left for legislative determination. The patentability of nucleotide sequences derived from human DNA is in that category.” 

Do you agree that gene patents would be an extension of the concept of a ‘manner of manufacture’ which was not appropriate for judicial determination?"

Brad: "One of the interesting things about the NRDC case is that it stressed the importance of the law and the definition of 'manner of manufacture' to adapt to encapsulate new types of innovative technology. One of the issues in this case is the focus on the phrase  'manner of new manufacture' rather than the concepts that lie behind it. I think that the patent law has been able to appropriately accommodate conceptual changes in the past, so long as it is based on the principles that have been developed.

I think that it is appropriate for the courts to stand up and deal with this. If Parliament is unable to resolve this issue - and historically parliaments have had phenomenal difficulty in dealing with intellectual property law provisions - so I think there is enough of a conceptual framework that decision can be made, so long as it is taken seriously, and so long as the courts and the lawyers take a broader and more imaginative approach, rather than just reverting to the same old ideas."

Jocelyn: "It was argued by Myriad that Parliament had the opportunity in the past to specifically exclude gene patents, but it didn't go through. They essentially argued that Parliament was intentionally leaving it open."

Brad: "There are many different reasons why legislation does go ahead. Pieces of legislation are often the product of pork barrelling, or trading between partners, or lobbying, so the fact that something doesn't get through is not any indication that Parliament does not want to do it, and while it may be in some cases, that was a bill put forward by a senator who did not have the support of the party."

Jocelyn: "The Myriad decision in the USA specifically recognised that synthetic DNA created in a laboratory, known as cDNA, was not a product of nature and could be patented. On the other hand, the Australian High Court was silent with regard to those claims, with the exception of Gordon J, who stated in obiter dicta comments that genetic probes would be patentable. Some say this means that the High Court has gone further than the US Supreme Court. Do you think the biotechnology and other industries have any cause for concern here?"

Brad: "The omission of comment about synthetic DNA was a real oversight. On the reasoning of the decision, I would be highly surprised if synthetic DNA did not get up. It may be the case, however, if it were argued appropriately, that it would not get up on the basis of lack of inventive step. Under the basic principles of patent law, I don't see any reason why synthetic DNA would not get up. 

I am still very surprised that the High Court did not see how important it was to mention that: it was a real oversight, and completely bizarre since it came up during the proceedings."

Jocelyn: "What likely implications will this decision have for access to certain types of genetic material by the scientific and research community? Would it really improve the provision of genetically derived healthcare services and the capacity to conduct unfettered biotechnological research?"

Brad: "I mentioned the research by Professor Dianne Nicol, which suggested that there has not been a lot of evidence of any stifling effect of gene patents. There has, however, been some indications in the agriculture industry, where lawyers involved in the research process take a conservative approach, and have effectively stifled the research. A more imaginative approach would allow them to get around it, but if you get the wrong lawyers involved and an institution like a university or public agency, then it does have a stifling effect.

Although it is not as bad as some people claim, I think it is important in terms of the impact. Going forward, it would allow researchers to argue more strongly that their activities are not covered by patents. Insofar as the potential threat to genetically-driven healthcare is concerned, and although there are potentially ways to get around it, the conservative legal system and the lawyers involved are a bit institutionally averse to challenging these provisions. So, we get the situation where cancer victims or potential cancer victims get railroaded. In the United States, there are lots of examples of threats issued against people researching in the field, and that will disappear going forward.

Given that the patent had lapsed in Australia, it is obviously a dead issue, but in other areas it is very important: it is not just for gene patents. Had the High Court been a little bit clearer, it would have been a much better decision."

Jocelyn: "The Court gave particular credence to patent law internationally. In the judgment of French CJ, Kiefel, Bell and Keane JJ, it was noted that: “The relevant law of other countries may appropriately be taken into account where an application of the Act would enhance or detract from the harmonisation of Australia's patent law with other jurisdictions.” What do you make of the weight which was given to the state of affairs in our regional trading partners like China, Japan, Korea, Singapore and India, and the purported need for harmonisation with Europe and the USA?"

Brad: "The issue of harmonisation of patent laws in the judgment was odd. Members of the judiciary in recent years have been stressing the fact that universities are providing inadequate education about statutory interpretation. I would have thought that a statute which says, quite clearly, that the meaning of "invention" is derived from the phrase 'manner of manufacture' would be interpreted according to the relevant principles and concepts, and not deriving from perceptions of what the laws are like in some countries, like China, Singapore, etc. I mean, why not Canada? Why not France? How do you select those five countries out of the hundreds of countries?

I do not see why questions of harmonisation are important. These are issues for Australian people, particularly Australian women, and I think that the issues about harmonisation are completely irrelevant. If there were issues about harmonisation, it would be about Australian researchers getting the same level of protection overseas. I found it to be the most bizarre part of the decision.

Australia complies with its international obligations like the TRIPS agreement, which is very specific about the laws and we provide the correct levels of protection. There is some scope for member states under the TRIPS agreement to interpret things according to their national needs. I think that it is much better for a country to pursue its own interests. Often arguments for harmonisation just reflect a particular policy, because decisions have to be made about which countries to harmonise with - why not Canada, or France, or North Korea [laughs]?"

Jocelyn: "Is there anything else you would like to add?"

Brad: "The decision is very important. It sends a strong message, and it's really pleasing that the Court would engage in a way which it has never done with patent jurisprudence. Some aspects of the decision are a bit disturbing or unnecessary - it's really not an example of evidence-based decision making. On the one hand, the Court is saying that it is a matter for the politicians to decide, and on the other, it is raising political issues in the reasoning.

Harmonisation is an issue that I really don't think is relevant in this context. The lack of guidance about the synthetic DNA was an oversight, although I do not think there would be any doubt about the law. It is just something that could have been dealt with really quickly, but was not.

It is heartening to see the Court beginning to develop some Australian jurisprudence. However, it is a mix: on the one hand, they have their own jurisprudence, and on the other, they are falling back onto other countries. Australian patent law has been a bit homeless since the British joined the European Patent Convention, so we couldn't follow the UK, or the USA, and so now we do not know where to look - as though we've been thrust out by our parents and have not quite grown up yet. Part of the decision is us wanting to go live back at home (but we aren't really sure where home is, so we are looking around for a country to befriend us) and the other part of the decision is us trying to grow up.

Overall, though, the outcome is fantastic."

Jocelyn: "Thank you so much for taking the time to speak with Pandora's Blog."

The Institutionalisation of Domestic Violence Norms: Achieving Sustainable Development Goal 16 in Cambodia

Written by: Sunny van den Berg

     Despite active efforts to eradicate abhorrent breaches of human rights and to foster social development, the experiences of women are often neglected and overlooked in the socio-economic, political, and legal arenas. It is crucial to consider a gendered perspective: one that emphasises the adverse effects of each global concern on women. More specifically, Sustainable Development Goal (SDG) 16 calls for the promotion of peaceful and inclusive societies, impartial access to justice, and the building of efficient and accountable institutions. The case study of Cambodia will be investigated to highlight realistic goals for a gender-targeted sustainable future. A critical analysis of domestic violence in Cambodia and the subsequent legislation, teamed with an acute lack of accountable and objective legal institutions, reveals the severity of the degradation and vulnerability of women on both social and legal platforms. The reformation of these laws and control over normative patriarchal societal codes is integral for achieving SDG16.

Theoretical Context

     Legal feminism critiques the patriarchal underpinnings of society that are further manifested through the legal discourse (Grant Bowman and Schneider 1998: 249-250). Critical Legal Studies emphasizes the “open-ended character of the social and political context in which law is shaped” (Freeman 2000: 555). More narrowly, feminist legal scholars have adopted the slogan “the personal is the political” as the framework to explore issues of the public/private dichotomy and how the legal system silences women’s experiences (Morgan 1987: 749). This has engendered critical analyses of the law’s failure to intervene in categorically “private” affairs, and its subsequent failure to address issues of domestic violence, marital rape, and incestuous assault (Morgan 1987: 749-750; Moyo 2012: 252-253). Propagating the position that the legal arena is gendered, feminists contend that the “private” is routinely restricted through taxation, family, criminal, and tort law, and that reluctance to reform domestic violence is a result of gender hierarchies (Morgan 1987: 750). The “family and the state are not unrelated” and thus, it is “disingenuous to suggest that family issues are beyond the state’s control” (Surtees 2000). Thus, the exploitation of women in the private sphere must be addressed to ensure positive and equal experiences for women in a global socio-political and legal landscape that routinely ignores legal disparities between men and women: a gendered perspective regarding violence must be adopted in order to challenge this norm.

Entrenched Gender-Based Violence Norms

     The cultural terrain that engenders violence against women in Cambodia is indivisible from the violence itself, and subsequently, violent social norms illustrate the need for the reformation of legal infrastructure to implement SDG16.

     Cambodian society endorses a power-based gender dichotomy of male/female as correspondingly dominant/weak, stemming from the reverence of patriarchal values. These values are observable in Cambodian households (Surtees 2003: 31). Qualitative data suggests that 25% of Cambodian women experience domestic violence in the forms of psychological, physical, and sexual violence, with 23% experiencing such violence in the past year of the study (Yount and Carrera 2006: 368). More specifically, 17% experienced psychological violence, 16% were subject to physical violence (with 5% exposed to punching, kicking, and dragging), and more than 5% suffered sexual violence at the hands of their spouse (Yount and Carrera 2006: 386). An independent study conducted by the Cambodian Human Rights and Development Association in 2005 and 2006 highlighted gross domestic violence occurrences: 364 domestic violence cases were reported in 2005, which increased by 146% to 531 in 2006, with 531 injured victims (HRN 2011: 9). The violence employed by husbands ranged in practice: victims experienced violence ranging from spearing with a harpoon to having hot water or acid thrown at them (HRN 2011: 9). Furthermore, over half of the abused women were struck by an object, 9.1% had been tied up and hit, 36.4% had reported being threatened with a knife or gun, and disturbingly, 5.5% had been stabbed or shot by their abusive spouse (Surtees 2003: 31).

     Paradoxically, social responses to domestic violence shape the ideological landscape that prompts such violence. Whilst families occasionally intervene, victims are encouraged to return to their spouse, demonstrating the nexus between social acceptance and unhindered violence. Resultantly, over 25% of women who have been abused do not think this is the case (LICADHO 2004: 14) and 56% of women believed that physical abuse was justified (Yount and Carrera 2006: 368). This is instilled into girls from a young age: ‘Chab Srey’ (or the ‘women’s code’) in Cambodian curriculum encourages women to “follow the command of the husband like a slave… for fear of otherwise being insulted or beaten... even if your husband has a terrible temper, you must never dare to reply” (Zimmerman 1994: 7). This illustrates an overarching unfamiliarity with the concept of domestic violence and women’s rights. Consequently, abuse is largely unreported: preventative factors primary concern social stigma, blame, and the view that such crimes are not serious enough to report (LICADHO 2004: 14). A fear of further attacks supplements women’s unwillingness to report crimes and to file for divorce (Thomas Reuters Foundation 2013: 31). The silencing of domestic violence can also be attributed to the private status delegated to such issues: gendered violence is seen as a familial issue rather than a public issue that manifests from violent social norms (Surtees 2003: 32-33). This isolates domestic violence from its socio-political context and the systematic structures of society, and effectively removes accountability (Surtees 2003: 33). Thus, reporting crimes and divorce are “hardly a panacea in Cambodia” (Surtees 2003: 34).

      Accordingly, domestic violence norms are deeply entrenched within Cambodian society, which undermines the progress of SDG16.

Statutory Measures and Remedies

      Whilst domestic violence is an insidious social force, there remains a lack of an appropriate action taken by the legislature. Despite ratifying the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1992 (HRN 2011: 2), Cambodia has seen “limited progress in the prevention and elimination of violence against women” (Brickell, Prak, and Poch 2014: 8). Statutory remedies echo social norms: vagueness, a lack of criminal measures, and the importance of alternative dispute resolutions undermine legal progress towards appropriate and well-adapted legal avenues.

      Legally defined by the Law on the Prevention of Domestic Violence and the Protection of Victims, domestic violence is:

“any act or failure (negligence of household members) by a person with respect to another person that infringes upon the latter’s constitutional rights and freedoms, or any act that causes or contains a threat to cause him/her physical, psychological, sexual or economic violence causing moral, physical or mental suffering” (Thomas Reuters Foundation 2013: 13).

      However, despite the substantial comprehensiveness of this definition, the specific articles relating to implementation are significantly less thorough and operative. Articles 13-19 delineate that “the authorities in charge” shall intervene in cases of spousal violence, however, the failure to delegate this responsibility to a particular authority has lead to all of the potentially relevant authorities to fail to act, thus, leaving a wide scope for domestic violence (HRN 2011: 16-17). Further, Chapter 7, ‘Penalties’, does not recognize this statute as criminal law, and thus offenders are not subject to punishment (art 35-36). The Explanatory Notes justify this by stating that criminal penalties stigmatize the offender, and lead to the economic losses of his family without the main provider (Ministry of Women’s Affairs 2007: 18).  

      Divorce laws are similarly inept in the recognition of gendered-violence. Under Article 978 of The Civil Code of Cambodia, any form of abuse is not a valid reason for divorce, thus, trapping women into abusive relationships (art 978). The emphasis on reconciliation is also heavily problematic as the Code states, “acts of violence… reconciliation or mediation may be possible… in accordance with the nation’s good custom and tradition” (Law on the Prevention of Domestic Violence and the Protection of Victims art. 26). As the focus is placed on reconciliation rather than disciplinary measures, this alternate form of mediation does not offer an appropriate remedy for women in abusive situations. Victims of domestic violence are effectively confined to a situation where they must continue to see, interact with, and often live with their abusers (HRN 2011: 25-26). 

      Due to the vague articles of the legislation, the lack of criminalisation, issues with divorce stemming from violence, and the rigid encouragement of reconciliation, Cambodian “law is yet to be widely used to provide enough protection for women… the legal system is not able to prevent domestic violence and provide adequate protection” (Brickell, Prak, and Poch 2014: 8).

Defects in the Legal Machinery

      Conforming to destructively pervasive social norms for domestic violence and following feeble statutory frameworks, defects in implementation obstruct the fulfillment of SDG16.  A mélange of issues including access to justice, flawed police and judicial measures, and a shortage of services restricts the eradication of domestic violence.

       Violence against women is frequently disregarded by authorities, despite violence against men (ie. men against other men) being perceived as unlawful (Surtees 2003: 32). A lack of police training fosters institutional acceptance of domestic violence norms: The Cambodian Women’s Resource Centre found that 48% of police do not believe domestic violence is a crime, and a meager 17% who witness the whipping of a women would arrest the abuser (Surtees 2003: 32). This limited exercise of authority in regards to the protection of women impedes upon progress. LICADHO reveals that one woman who was abused and threatened by her husband contacted the authorities, and was promptly rejected any form of protection as it was midnight, and she would have to wait until the morning (HRN 2011: 35). Often, the police maintain that a woman must be severely injured or killed before actions are taken, however, this leaves a dangerous gap in protection (Walsh 2007: 37). In adjunct to this, bribes are often required to commence police investigations, however, Cambodian women do not often have access to money, and taking money from the household for bribes can potentially lead to further abuse (LICADHO 2004: 18). Thus, the first wave of legal action is not an effective protection against gendered violence.

     Defects in judicial mechanisms place further limitations upon the success of implementing SDG16. Judicial interpretation should be impartial and independent, however, “custom, tradition and religion” are considered in interpretation (HRN 2011: 43). As the Cambodian judiciary reflects the social norms of negative attitudes towards women, these norms are filtered through judgments: appropriate damages and results are often not given (LICADHO 2004: 12). Furthermore, areas for concern include: the required documents are often lost by the court and subsequently, no action is taken; there is no specified timeframe, which leads to indefinite delays; a high threshold of judicial discretion engenders arbitrary and prejudiced decisions; legal fees are not viable; and bribery (HRN 2011: 40). These weaknesses and the unresponsiveness of the system propagate the message that there are no repercussions for domestic violence (Walsh 2007: 21). Although domestic violence laws exist, legal action is not sufficient to “prevent domestic violence and provide adequate protection” (HRN 2011: 2), and thus, Cambodia “lacks the political will and institutional infrastructure needed to protect rights” (Walsh 2007: 21).  Effectively, the institutional frameworks to implement SDG16 are eroded by the authorization of harmful societal norms.

     Whilst the police and judicial authorities are problematic in their structure and implementation, a lack of access to legal measures also contributes to the dismissal of SDG16. Human Rights Now has identified numerous issues preventing access to justice for Cambodian women: remote villages are too isolated from legal necessities; there is a lack of education regarding rights; unfamiliarity with prospects for protection; financial difficulties; and lengthy timeframes further endanger the victim in the community (2011: 42-43). These factors prevent effective responses to domestic violence. A lack of access to support networks furthers the weaknesses in resolving domestic violence (HRN 2011: 43). Whilst several non-governmental organisations have formed in the last few decades, including the Project Against Domestic Violence and the Cambodian Women’s Crisis Centre, there is a severe shortage of services and resources for women (Walsh 2007: 37). In particular, access for those in remote provinces is non-existent: the services are all located in Phnom Penh, which severely limits access to justice (LICADHO 2001: 63).

     Thus, the defects in the legal machinery stemming from flawed police forces and the judiciary, in conjunction with a lack of access to justice inhibits the success of the implementation of SDG16 in Cambodia. 

Conclusion

      The enactment of SDG16 is vital for Cambodian women to alleviate the implications of domestic violence upon women’s experiences. Whilst legislative frameworks are available, they are not adapted to serve as a protection for women by criminalizing domestic violence, nor do they effectively combat detrimental social norms. Furthermore, this legislation appears artificial in its application due to the failure of implementation at judicial, quasi-judicial, and social levels: violence is characteristically legitimized through inaction (Heak 2013: 5).  Cambodian women receive a concerning lack of legal representation, equality before the law, and access to justice for crimes committed against them. Legislative and judicial restructuring, development corresponding with basic human rights for women, and social reform is vital to cement women’s rights and for Sustainable Development Goal 16 to be attained.

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List of Works Cited

Brickell, Katherine; Prak, Baureaksmey; and Poch, Bunnak. 2014. Domestic Violence Law: The Gap Between Legislation and Practice in Cambodia and What Can Be Done About It. London: Department of International Development.

Cambodian League for the Promotion and Defense of Human Rights (LICADHO). 2004. The Situation of Women in Cambodia. Phnom Penh: LICADHO.

Freeman, Michael. 2000. Current Legal Problems 1998: Legal Theory at the End of the Millennium. Oxford: Oxford University Press.

Grant Bowman, Cynthia, and Schneider, Elizabeth. 1998. ‘Feminist Legal Theory, Feminist Lawmaking, and the Legal Profession’. Fordham Law Review 67(2): 249-271.

Heak, Sreang. 2013. Domestic Violence Against Married Women in Cambodia: Help-Seeking, Re-Abuse, and Severity of Physical Violence by Husbands.  United States: ProQuest Publishing.

Human Rights Now (HRN). 2011. Report on the Violence Against Women in Cambodia. Tokyo: Human Rights Now.

Law on the Prevention of Domestic Violence and the Protection of Victims (Cambodia).

LICADHO. 2001. Rape and Indecent Assault in the Community. Phnom Penh: LICADHO.

Ministry of Women’s Affairs. 2007. Explanatory Notes on the Law on the Prevention of Domestic Violence and the Protection of Victims. Cambodia: Ministry of Women’s Affairs.

Morgan, Jenny. 1987. ‘Feminist Theory as Legal Theory’. Melbourne University Law Review 16(4): 743-759.

Moyo, Khanyisela. 2012. ‘Feminism, Postcolonial Legal Theory and Transitional Justice: A Critique of Current Trends’. International Human Rights Law Review 1 (2): 237-275.

Surtees, Rebecca.  ‘Cambodian Women and Violence: Considering NGO Interventions in Cultural Context’ (MA diss., Macquarie University, 2000).

Surtees, Rebecca. 2003. ‘Negotiating Violence and Non-Violence in Cambodian Marriages’. Gender & Development 11(2): 30-41.

The Civil Code of Cambodia.

Thomas Reuters Foundation. 2013. A Landscape Analysis of Domestic Violence Laws. London: Thomas Reuters Foundation.

Walsh, Mélanie. 2007. Report on the Status of Cambodian Women: Domestic violence, sexual assaults and trafficking for sexual exploitation. Accessed: 21st March 2015. Available at: http://www.ieim.uqam.ca/IMG/pdf/Walsh_Cambodia_women.pdf

Yount, Katherine, and Carrera, Jennifer. 2006. ‘Domestic Violence Against Married Women in Cambodia’. Social Forces 85(1): 355-387.

Zimmerman, Cathy. 1994. Plates in a Basket Will Rattle: Domestic Violence in Cambodia. Phnom Penh: The Asia Foundation.

A Fair Go for All Australians: The role of the Convention on the Rights of Persons with Disabilities in promoting socially just outcomes for Australians with disability

Written by: Jillian Ash 

Jillian Ash at UNESCAP

Australia is considered a wealthy country that performs very strongly in many measures of well-being relative to most other countries. Despite this, Australians with a disability experience significantly worse socio-economic outcomes and poverty than Australians without a disability. In short, Australians with disability are less likely to be employed, less likely to participate in post-secondary education and training, and more likely to experience social exclusion and ongoing discrimination.

Just fewer than one in five Australians (4.2 million or 18.5% of Australians) reported having a disability in 2012, of which 88% (or 3.7 million) had a limitation or restriction that meant they were limited in their core activities of self-care, mobility or communication. One of the most compelling statistics is that approximately 45% of Australians with disability live near or below the poverty line. This is further reinforced by data published by the Organisation of Economic Co-operation and Development (OECD) in 2009, which demonstrated Australia as having had a relative poverty risk of 2.7 (for people with disability compared to people without disability) against the average of 27 OECD[1] countries with 1.6. This suggests that while people with disability make up Australia’s largest minority group, they are not afforded the basic rights others take for granted and they continue to face institutional barriers to equality and justice. 

However, the adoption of the Convention on the Rights of Persons with Disabilities (CRPD) by the United Nations General Assembly in 2006 has instigated a global paradigm shift in how we view persons with disability[2], by advocating a socially just model that views persons with disability as full and equal members of society with human rights. As such, the CRPD plays an influential role in promoting equality and inclusion, and alleviating poverty, for Australians with a disability. 

1.1.         Australians with disability: the context

According to recent research conducted in Australia, the social and economic contribution people with disability are capable of making is massively undervalued and forgotten altogether. Perceptions of and attitudes towards people with disability greatly affect their inclusion in their communities and their capacity to achieve basic goals, such as employment and education. Examples of negative attitudes towards people with disability include derogatory stereotypes and beliefs that people with disability have a lesser position in society, that they are in need of ‘fixing’ or that they have a diminished capacity to contribute due to their impairment.

Access to education and employment is vital for Australians with disability. Education and employment can contribute to a sense of identity and self-worth, greater economic independence, inclusion in the wider community and have positive health impacts for some people with disability. Alarmingly, over the last few years, the rate of unemployment for those with a disability had increased (9.4% in 2012 compared to 7.8% in 2009), while remaining steady for those without disability (4.9% in 2012 and 5.1% in 2009). In comparison with other OECD countries, Australia ranks 21st out of 29 OECD countries in employment participation rates for people with disability. Negative attitudes and misconceptions about disability reportedly contribute to the reluctance of employers employing a person with disability. 

In addition, Australians with disability are less likely to participate in post-secondary education. About 15% of people with disability had obtained a bachelor degree or higher in 2012, compared with 26% of people without disability. Data published by the National Centre for Student Equity in Higher Education suggests that within the post-secondary education sector, students with disability continue to be identified as a disadvantaged equity group due to the under representation in accessing, participation and succeeding within higher education in Australia. In 2012, students with a disability represented 5.2% of all domestic undergraduates in Australia, below the national reference target of their population share of 8%. Astonishingly, the University of Queensland (UQ) had the lowest representation rate of students with disability across all 41 Australian Universities, with approximately 2.7% of the student body self-identifying as having a disability. This suggests UQ currently possess barriers which prevent people with a disability from attending the university. This could largely be attributable to the absence of financial support (specifically equity and access scholarships and/or bursaries), as well as Disability Services being significantly under-resourced.

1.2.         The Convention on the Rights of Persons with Disabilities

The CRPD offers the most comprehensive and authoritative set of standards on the rights of people with disabilities. The fundamental purpose of the Convention is to:

“promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (Article 1).

Although the CRPD is not legally enforceable in an international court, it constitutes a powerful means of holding governments accountable to the international community and providing a springboard for national advocacy[3]. The Convention consists of 50 Articles, which are summarised as follows:

Articles 1 to 7: sets outs the general principles that establish people with disabilities are the subject of rights.

Articles 8 and 9: seeks to raise awareness, foster respect, combat stereotypes, prejudices and harmful practices, including the exclusion of people with disabilities from physical environments and essential services.

Articles 11 to 17: reflects the priority given to physical and mental safety and well-being, as a precondition for social inclusion.

Articles 18 to 30: recognises the barriers to effective social participation as the interplay between the embodied experience of disability and the disabling effects of active and passive discrimination.

Articles 31 to 50: relates to governance, reporting and monitoring of the Convention. 

As of August 2015, 157 governments have ratified the CRPD, with Australia ratifying the CRPD in 2008. The committed governments are obliged to submit regular reports to the CRPD Committee[4] on how the rights are being implemented. In tandem, the Australian Government developed the National Disability Strategy to align with the CRPD, which sets out a ten year national plan (2010 to 2020) for improving life for Australians with a disability, their families and carers.

The CRPD rejects the traditional medical model of disability, which suggests people with disability are ‘broken’ and thus in need of fixing or charity. Instead, the CRPD promotes the social justice model. UQ’s own Dr Paul Harpur articulated the social justice model assumes:

“that society creates barriers which prevent people with disabilities from functioning in society, and, therefore, society itself must change and adapt to enable people with disability to enjoy their human rights” (p. 165).

As such, the CRPD seeks to break down barriers that perpetuate social exclusion and marginalisation of people with disabilities. To achieve this, it sets out the foundational human rights of non-discrimination, equality and social participation as entitlements that must be constructed in the social fabric[5].

1.3.         The role of CRPD in promoting socially just outcomes for Australians with disability

In essence, the CRPD serves as a major catalyst in driving a paradigm shift in attitudes towards people with disability. More specifically, it has the potential to facilitate a radical review of policy and practice across the Australian government and organisations of persons with disability to enable the social participation of Australians with a disability in everyday interactions in society. Reflecting this new approach to disability, the Australian Public Service (APS) launched its Disability Employment Strategy, ‘As One’, in 2011. A major initiative of the strategy is the RecruitAbility scheme, which supports people with disability applying for jobs in the APS. Job applicants with a disability who opt into the scheme are advanced to a further stage in the application process and are provided with support once they are in jobs. This process aims to eliminate bias and negative assumptions towards applicants with a disability early on in the recruitment process, and thereby enhancing the chances of these applicants being successful in obtaining roles within the APS.

Opening up opportunities for Australians with a disability, particularly in employment and education, is considered one of the most effective ways to promote equality and alleviate poverty. Once Australians with a disability are more visible in the community, it will become easier to achieve equality and socially just outcomes, as the invisibility of people with disability in the community hinders the fight against exclusion and discrimination.

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[1] The mission of the Organisation for Economic Co-operation and Development (OECD) is to promote policies that will improve the economic and social well-being of people around the world. Average of 27 OECD countries: United States; Australia; Ireland; Korea; Canada; Mexico; Portugal; Denmark; Spain; United Kingdom; Finland; Italy; Germany; Greece; Belgium; Poland; Austria; Switzerland; Hungary; France; Iceland; Luxembourg; Czech Republic; Netherlands; Slovak Republic; Norway; and Sweden.

[2] The Convention defines disability as including: those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

[3] Mittler, P. (2015) The UN Convention on the Rights of Persons with Disabilities: Implementing a Paradigm Shift, Journal of Policy and Practice in Intellectual Disabilities, 12 (2), pp. 79-89.

[4] The Committee on the CRPD is the body of independent experts which monitor implementation of the Convention by the State Parties. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented.

[5] Weller, P. (2009) Human Rights and Social Justice: The Convention on the Rights of Persons with Disabilities and the Quiet Revolution in International Law, Public Space: The Journal of Law and Social Justice, 4, pp. 74-91.

A Human Rights Act for Queensland

Human Rights Law in Australia

Unlike many Western countries, Australia does not have a federal Bill of Rights or similar legislation. A handful of rights are enshrined in the Constitution, including the right to vote in s 41, the right to freedom of religion in s 116, the right to trial by jury in s 80, and some others. Additionally, some rights are protected in the form of legislation, such as:

• Australian Human Rights Commission Act 1986 (Cth)
• Sex Discrimination Act 1984 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)

On the international level, Australia assisted in the drafting of the United Nation's Universal Declaration of Human Rights. The Australian Capital Territory and Victoria both have human rights legislation: the Charter of Human Rights and Responsibilities Act 2009 (Vic) and the Human Rights Act 2004 (ACT). 

Attorney-General Yvette D'Ath. Photo: Glenn Hunt, via Brisbane Times.

In Queensland, no such legislation exists. However, a campaign has recently been launched to reignite the push for a human rights act. On Monday 14th September 2015, the Attorney-General of Queensland announced that there would be a Parliamentary inquiry into a human rights act for Queensland.

#humanrights4qld‬

                Aimee McVeigh

Aimee McVeigh of McVeigh Law is part of the recent campaign to have a Human Rights Act for Queensland. She kindly shared some comments with Pandora's Blog about the need for human rights protection in Queensland. 

Why the push for a Human Rights Act now?

Aimee: "While the legislative protection of human rights has always been important for all Queenslanders, it has been placed back on the agenda by the Hon. Peter Wellington, independent member for Nicklin and current speaker of the Queensland Parliament. In February this year Hon. Peter Wellington and the Premier committed to take steps towards a ‘public discussion’ on the adopting of a Human Rights Act in Queensland. Since then, momentum and support has been growing towards the adoption of a Human Rights Act for Queensland."

Why Have a Human Rights Act?

Many feel that existing constitutional rights, parliamentary sovereignty, and common law rights are sufficient to protect Australians from breaches of their human rights. However, the evidence shows that many groups in Australia face serious disadvantage.

What would be the key elements of the proposed Human Rights Act?

Aimee: "A Human Rights Act would impose a duty on the Parliament, the Executive and the Judiciary to consider human rights in their actions and decisions. The legislative models that exist in the ACT and Victoria set up a ‘dialogue’ between the government and the people about how their actions interact with the rights of citizens. We expect that Queensland’s Human Rights Act would set up a similar dialogue. We have an opportunity to learn from Victoria and the ACT to improve upon the models that currently exist in Australia. The Victorian Charter has just undergone an independent 8 year review (the report was handed down last week) and we have a great opportunity to draw on these recommendations in the development of a Human Rights Act for Queensland."

Disability and the Law

Australians living with disability face a plethora of issues. These include:

• Involuntary sterilisation, which is the State's way of controlling the fertility of vulnerable people in our society.
• Forcing disabled individuals to live in nursing homes, where they are cut off from the community. The Summer Foundation has worked hard to address this ongoing problem.
• Many younger disabled people have been classified under the portfolio of the Aged Care Commissioner, as there is no longer a Disability Commissioner.
• Voting rights - isolated individuals and those in Supported Residential Services are often unable to exercise their right to vote.

What are some key issues facing Queenslanders with disability which could be addressed by a Human Rights Act?

Aimee: "It is not possible to generalise about the impact on people with disability, women and Aboriginal and Torres Strait Islander peoples because they are diverse groups of people.

• Some Queenslanders with disability come in contact with the Public Trustee and the Office of the Public Guardian when their decision making capacity is impaired. A Human Rights Act would require these government departments to consider human rights in policy development and service delivery. 
• Some people with disability continue to experience difficulties having their decisions recognised. People with difficulties communicating or with varying degrees of decision-making capacity currently do not have their right to be provided with support to make their own decisions recognised. 
• A Human Rights Act could also provide protection to women who are interacting with child safety because of assumptions about their ability to care for their child.

Relevant case studies from Victoria include:

1. In Victoria a disability support worker who had been dismissed from employment after dragging a person with an intellectual disability across a carpeted hallway appealed his dismissal. The Supreme Court upheld the dismissal in part because the worker was found to have breached the right to freedom from cruel, inhuman and degrading treatment.
2. In Victoria a man with disability was provided with services to enable him to integrate with the community after an advocate used the charter to argue that not providing these services amounted to a breach of the man’s right to freedom of movement."

Lesbian, Gay, Bisexual, Transgender and Intersex People

While great strides have been made in recent decades to remove discrimination against the LGBTIQ community, many problems remain.

• Marriage equality - anyone who watches the news would be well aware that Australia is one of the few countries which does not allow same-sex marriage.
• Forced divorce for trans people - married couple are obligated to get divorce if one partner undergoes gender reassignment, under s 22 of the Births Deaths and Marriages Registration Act 2003 (Qld).
• Homosexual advance defence - the "gay panic" defence remains part of the Queensland criminal law, allowing for gay men to be killed on the basis of an unwanted sexual advance.
• Criminal records for homosexual activity - many gay men still have criminal records for consensual sex which occurred in the 1980s. While Victoria and New South Wales have expunged historical homosexual offences, Queensland is yet to do so.

Aboriginal and Torres Strait Islander Australians

Members of the Aboriginal and Torres Strait Islander community are often marginalised and disadvantaged within the justice system. For example:

• Over-incarceration of Indigenous Queenslanders - Aboriginal and Torres Strait Islander people constitute less than 4% of the Queensland population, yet account for nearly 30% of the state’s prison population.

Aimee: "There is potential for a Human Rights Act to provide particular benefits to Aboriginal and Torres Strait Islander peoples. The Victorian Charter of Human Rights includes legislative protection of Aboriginal peoples individual and collective cultural rights including the right to enjoy their identity and culture, maintain and use their language, maintain kinship ties and to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs. No such protection exists in Queensland. 

The 8 year review of the Victorian Charter includes a recommendation that the Charter be amended to recognise Aboriginal peoples’ right to self-determination."

Women

Aimee: "A Human Rights Act should strengthen Anti-Discrimination legislation. The Victorian Charter has been used by women facing homelessness and women who have experienced domestic violence to prevent eviction and to help them to access the services that they need."

Aimee has a Brisbane Times opinion piece on this subject.

Where To From Here?

The Human Rights Act for Queensland campaign has an online presence, which can be used to stay up to date with events and opportunities to help push for a Human Rights Act. You can find the campaign on Facebook and Twitter.

You can take a picture of yourself with a sign showing your support for a human rights act and post it on social media #humanrights4qld

Write to your MP and let them know that this is an issue that you care about, and sign the petition https://www.change.org/p/annastacia-palaszczuk-support-bill-of-rights. You can volunteer with the campaign - email katharine.vacca@mamre.org.au to see how you can get involved.

#humanrights4qld

A photo posted by A Human Rights Act 4 QLD (@humanrights4qld) on Sep 14, 2015 at 9:03pm PDT