In Conversation With: Graeme Orr

Graeme Orr is a Professor at the University of Queensland. His research interests are wide and varied, and I was lucky enough to have a short conversation with him about the recent Queensland local election. In particular, Graeme shared with me his views on the referendum and democratic process. I will be interested in hearing Graeme's perspective on the upcoming Federal Election, but that's for another day.

Prianka: For someone who has no idea how things work, can you explain briefly what the democratic process was like in the lead up to the election?

Graeme: It wasn’t run very well, whether by design or misadventure (or a bit of both). As you probably know better than me, many people were not aware that the referendum was on, and people were turning up to the polls surprised that they had to vote on something besides local government. This Bill, that is now law to amend Queensland’s Constitution was pushed through on the last sitting before Christmas. We heard nothing of it for a while afterwards, other than there was a suggestion that the government, to save money, wanted to hold the referendum on the same day as the local government polling day.

We then had four or five weeks’ notice when the Governor said that the referendum would be held. The people behind the referendum spent no public money educating, and we know that this is an absolute problem when it comes to deliberative democracy. This is especially in regards to referendums – for instance if you think about the Indigenous (so-called) recognition and local government referendums that were mooted, there has been a several year-long process of consultation and building up community information and potential support and arguments. In this case, there was none of that.

In this case, the only public monies that went into voter education was a 1000-word case for yes or no in letter boxes. Many people would’ve thrown it in the bin, many would have put it aside and lost it. In some cases, one person in a household would have seen it but not the rest. It’s not a bad idea, but it is a 100-year old idea in the law, that you spend some money for an official yes/no case which is in black and white. It’s fine, but you need a lot more, and we learned that seventeen years ago with the republic referendum, where they ran things like television and social media campaigns. Basically, we need an updated model about engaging people in open ways, and that’s particularly important when you’re changing fundamental legal institutions, like how long parliament runs.

You’ve done constitutional law, does Queensland have a constitution?

Prianka: I wish I had paid more attention in Constitutional Law, but yes I think so. There’s no bill of rights, so I’d hope that there’s a constitution

Graeme: Many people don’t know that Queensland has its own separate constitution to the national one, and very few people will know that Queensland’s constitution runs across many Constitution acts. Almost no people would know that the Queensland Constitution is flexible, meaning that we did not have to have a referendum to determine fixed terms – we could have just passed a Bill.

Why then did they include fixed terms with longer terms? A referendum is needed for longer terms, because in the 1920s the Upper House, which was at the time stacked with old white men, was abolished and the Labor Party entrenched three-year fixed terms explicitly, because that was supposed to be the main form of accountability and protection for not having any other checks and balances.

However, the government in this case decided to bundle together fixed terms, where they didn’t even need a referendum, and longer terms where they did. Why do you think they did this?

Prianka: For them – for job security and the security of political agenda?

Graeme: Precisely, these were bundled together for their sake. They wanted longer terms. They could have had fixed terms without a referendum, and they could have done this any time in the past. They deliberately (or cleverly) bundled two separate issues together, when they could easily have had two separate questions in the referendum, to minimise peoples’ choices. It’s a bit like Optus and Telstra, they bundle together packages to force you into things that you don’t really want. It’s a classic marketing tool, to bundle together related but distinct questions, to minimise choice in the assumption or hope that people will favour fixed terms and stability, with the risk of longer terms and less democracy and checks and balances.

There was polling that shows that 60-70% of Queenslanders wanted fixed terms, and 60-70% of Queenslanders wanted short terms. You can see why the referendum was so close. You can see why it just struck over the line, despite peoples’ good democratic instincts. People are not irrational. People who simply trust in the power above are in a minority.

Prianka: So am I benefiting at all from four-year terms?

Graeme: You’re not, or at least you’re certainly not guaranteed to. You’ve diluted yours and your children’s’ votes – this referendum has diluted our voting rights, and it’s the only mechanism formally and institutionally in our legal system that provides us with protection from the executive government. I mean, we’ve got an Ombudsman and Parliament, and we’ve got parliamentary committees. However, none of these things are locked in. The ability to vote regularly was the only thing we had, and people used that to get rid of the Bligh government because it had been there for too long and had lied about asset sales, and they used it to get ride of the Newman government because it was moving too fast and too soon, in ways that people thought were unfair.

We now all have to wait an extra year to get rid of a bad government. But more than that, we only have one vote very four years. One ballot, one Upper House ballet. We can’t elect minor parties effectively because the system is geared towards the two major parties.

Prianka: That was one of my other questions – what chance do The Greens or any other parties have of being properly represented?

Graeme: You can see why The Greens and the Katter Party were against the referendum; because they prefer the idea of more democracy and not less. Voting less is a bit like having fewer opinion polls. It means that we’re being consulted less, and it means that the executive can just go on and do their own thing. But, when you think about Queensland’s culture and history, you can see that we have a history of (usually) strong male premiers. Newman – strong choices, Peter Beattie – was all about him. These Premiers can rule on 40% or less of the vote because the voting system in the Lower House is geared towards the party which is the most popular, not the party that has 50% of the vote. Smaller parties, like The Greens, don’t get any say.

We really missed a big opportunity. If a small percentage of people had switched, we could have forced the government back to the drawing board as they desperately wanted those four year terms like the other States. Had the referendum not passed, they would have had to bargain and give something up. Perhaps an entrenched bill of rights, or an Upper House (preferably). Maybe a system of proportionate voting in the Lower House like they have in New Zealand, which is my preference. Any one of those things would at least provide some system of checks and balance.

Importantly, it was always wrong to say that having a fixed four-year term would bring Queensland in line with the other States, because all the other States have an Upper House. They all have some proportional voting, whereas Queensland now has a constitution which is identical to the Northern Territory’s, and we know how how that’s working out.

Unfortunately, it’s now entrenched forever.

Prianka: Do you think that the possibility of an Upper House is realistic or idealistic?

Graeme: It would take a major scandal, like a corruption scandal, to induce parties to proactively put an Upper House back in place. We only have to look to the United States, how volatile the election is currently. People are looking for alternatives out of the cosy two-party system. They want someone who pushes down the barriers – a major economic shift. But this sort of scandal is not something that you would wish for as means of re-introducing an Upper House.

Remember that there really was no money in the ‘no’ case for the referendum. The Greens shared a video of me explaining my position (see below) but this was not funded. On the other hand, people on the ‘yes’ case were funded. The government paid for flights for the Attorney General and the Shadow Attorney General. They had party advertising and how to vote cards as well. So for them to only get 53% of the votes is one of the worst results for a referendum that has had bipartisan approval.

For instance, you can go back to the Commonwealth referendum for indigenous affairs in 1967, where there was 90% approval. In 1970s there were three referenda which all got between 60-80% of approval. This referendum was actually a very bad result.

But, it is what it is. We are now left with fixed four-year terms, and hopefully we will have more responsive rather than less responsive government. 

Things to note:

If you are further interested, you can find out more at http://www.theguardian.com/australia-news/2016/mar/18/queensland-politicians-in-furious-agreement-on-fixed-terms-but-voters-beg-to-differ 

Embedded in the article is the video prezi Graeme made explaining his case, as well as a video from Mr Ian Walker in support of four-year fixed terms. 

Ethical Issues Posed by Time-Based Billing in Law Firms

By Zachariah Schafferius

I. HISTORY OF THE ‘BILLABLE HOUR’ AND BILLING IN MODERN LAW FIRMS

The system of ‘billable hours’ remains the most common method of payment for legal services in Australia, despite attracting significant criticism from both inside and outside the legal industry.[1] This system has been widely criticised for placing too much pressure on lawyers, as it measures their output by the time they spend at work, rather than the outcome of their efforts.[2] This encouragers lawyers to engage in unethical conduct, by overcharging clients for work done in order to meet billable hour targets.[3] This system also creates an atmosphere of stress and competitiveness within law firms, as lawyers are overworked for prolonged periods of time, which has also raised serious concerns in the legal industry about the ethical issues caused by the billable hours system.[4]

The adoption of the billable hours system originated in the 1960’s; this system of billing was intended to provide clients with greater transparency about the services which they were being charged for and to measure the efficiency with which a lawyer carried out their job.[5] The consequence of this system has been that lawyers’ performance in the workplace is now assessed primarily by the amount of time they spend working which they are able to bill clients for.[6]

This system has attracted criticism from clients, as it does not allow lawyers to predict the fees which will be charged for the services they provide.[7] Recently, the global economic downturn during the late 2000’s has lead to increased pressure from business clients for lawyers to provide services at a pre-determined price.[8]

Despite this, the billable hours system continues to be used by the vast majority of large and medium firms in Australia, with some 86% of solicitors in Queensland reporting that they have a billable hours target which they are required to meet as part of their job.[9]

There are various mechanisms in place to ensure that clients are not over-charged in Australia for legal services.  Most notably, section 308 of the Legal Profession Act 2007 (Cth) requires solicitor to disclose how fees are to be charged and inform clients to seek independent legal advice about solicitor’s fees.[10] Solicitors are also required to provide clients with information about the basis upon which fees are to be calculated and an estimate of the total fee which will be billed to the client.[11]

Despite this safeguard, there is widespread concern in the legal industry that the billable hours system leads to lawyers over-charging clients and creates an unhealthy work environment within law firms.[12]

II BILLABLE HOURS AS A BUSINESS MODEL 

Various legal professionals have openly criticised the culture of over-charging and the associated ethical issues which have become increasingly prevalent due to the billable hour system.[13] Chief Justice James Allsop of the Federal Court of Australia summarised the ethical issues which arise as a result of the conflict the billable hours system creates between the economic pressure on a firm to maximise its profit and the ethical pressure on lawyers to work in their client’s best interest: ‘Only a very slight change of focus needs to be made by a lawyer to change from (a) expecting a profitable return from running as well and efficiently as possible a large case in court, to (b) planning how to make as much money as possible from running the same large case in court.’[14]

The professional nature of legal work requires lawyers to focus primarily on serving their client’s interest. They are required to act with integrity and adhere to professional ethics as they advise and represent their clients.[15] The Legal Profession is inextricably tied to the administration of justice – a lawyer is by the nature of their profession an officer of the court in addition to being a businessperson. Consequently, whilst lawyers and firms must compete in a market like other businesses, they also must act within the confines of laws and regulations governing the conduct and ethics of legal professionals, which ensures that legal professions are prevented from operating as businesspeople.[16]

However, as a business, the primary concern of law firms is to generate a profit. In order to remain competitive within the legal industry, law firms cannot charge higher fees than other firms who are able to perform the same work for a lower rate. Consequently, the alternative way for firms to increase their revenue is to maximise the number of hours of work which their employees can charge to their clients.[17]

This has resulted in most firms adopting a model where lawyers are require to meet a minimum target number of billable hours.[18] The reality of this business model is that lawyers are driven to ‘pad’ their timesheets in order to meet the billable hours requirement of their job.[19] Examples of ‘padding’ include lawyers charging multiple clients for a single task or overstating the time taken to complete a task. The result is that clients are over-charged for work completed by lawyers.[20]

The unethical consequences of this system have lead to a general feeling of suspicion and mistrust for legal practitioners amongst clients and the broader community.[21] This compromises the integrity of the legal profession, as lawyers struggle to uphold their role as a trusted advisor to their clients.

Several professional bodies have criticised the billable hours system as an ineffective way to measure the value of work completed by lawyers. The American Bar Association’s Commission on billable hours noted that ‘the billable hours [system] is fundamentally about quantity over quality, repetition over creativity. With no gauge for the intangible, such as productivity, creativity, knowledge or technological advancements, the billable-hour model is a counter-intuitive measure of value.’[22]

The pressure for lawyers to maximise the amount of billable hours they can charge to a client effectively discourages lawyers to complete work in a more efficient manner and to find ways to reduce the time work processes take.[23]As lawyers are judged by the number of hours they work, they may not be rewarded for dealing with matters and completing tasks more efficiently.

This further evidences that the billable hours system facilitates law firms acting in pursuit economic gain whilst compromising the professional obligation of lawyers to act in their clients’ best interests.

III MENTAL HEALTH AND WORK ENVIRONMENT ISSUES ASSOCIATED WITH ‘BILLABLE HOURS’

The emphasis which the billable hours system places on the quantity of time which lawyers must spend working has been attributed as one of the leading causes of stress, anxiety and depression amongst lawyers.[24]

This system encourages lawyers to work increasingly longer hours in order to meet billable hours targets and to measure their productivity in terms of ‘hours worked’ against their colleagues. This creates an atmosphere of competitiveness and mistrust between lawyers in a firm where they are also often expected to work as a team for the same client.[25]

In addition to creating a negative and unpleasant work environment, the emphasis placed on the sheer volume of time a lawyer can spend working inevitably detracts from all other aspects of their lives. Many large and mid-tier law firms in Australia require lawyers to bill, on average, six hours per day. It is generally accepted that approximately 60% of the hours spent at work will be ‘billable’, and so in order to achieve six billable hours, lawyers must be working non-stop for a minimum ten hours per day, without taking breaks, meetings or telephone calls into account.[26] The effect of this is that lawyers generally experience a significant decrease in their quality of life, as they have less time for lawyers to sleep, exercise, socialise and to spend time with their families.[27] For a prolonged period, this has been shown to create a highly stressful work environment and often leads to depression and substance abuse[28] amongst lawyers.[29]

Long hours and continuous stress also affects the ability of lawyers to think critically and impairs their overall cognitive ability. As a result, the quality of the legal services provided to clients is impaired, as legal professions struggle with large workloads.[30]

The overall effect of the billable hours system evidently poses a serious ethical issue, as many legal practitioners across the profession experience a significant decrease in their quality of life, which affects both their mental health and their capacity to perform in the workplace.

IV ALTERNATIVE MODELS OF BILLING

The American Bar Association has noted that ‘alternatives that encourage efficiency and improve processes not only increase profits and provide early resolution of legal matters, but are less likely to garner ethical concerns.’[31]

The primary issue which clients raise in relation to the billable hours system is that it does not allow clients to predict the legal fees with certainty. Consequently, alternative methods of billing must focus on the outcome of the work provided by lawyers, rather than the volume of time which has been spent achieving this outcome.[32] Similar transitions from time-based billing to output-based billing have been achieved in other industries such as marketing, consulting and accounting, which indicates that a similar transition in the legal industry is a feasible objective.[33]

There has been a growing shift away from the billable hours model to a value-based model of billing, and several alternatives are becoming more readily available.

For example, there has been a gradual shift towards lawyers charging flat fees for services provided to clients. This allows lawyers to present clients with an up-front price for their services, and reduces the risk of unethical conduct as there is little opportunity for lawyers to overcharge clients.[34]

A system of charging predetermined flat fees for legal services can been complemented by ‘contingency’ fees. The nature of the legal profession is that the work lawyers do depends on a range of variable factors.[35] In order to accommodate for this, many firms provide clients with a list of additional fee prices which may apply in different scenarios as a legal matter progresses. This provides law firms with the ability to charge for additional services provided if required, but provides a pre-determined cost for clients. [36]

Time-based billing may not be entirely obsolete, as it provides advantages such as transparency for clients about what they are being charged for and allows firms to be compensated for extra or unexpected work which their employees complete.[37]

However, the emphasis which is placed on time-based billing should be reduced and integrated with up-front legal costs which provide clients with greater certainty as to the extent of their legal fees and prevent ethical issues in relation to billing from continuing to comprise the integrity of the legal profession.[38]

V PERSONAL REFLECTION ON ‘BILLABLE HOURS’

As a law student, there are several issues which the ‘tyranny’ of the billable hour present which discourage me from seeking employment in a large or mid-tier firm where the ‘billable hours’ are the primary method for charging fees.

The most concerning issue relates to the unhealthy pressure present in these workplaces to meet a billable hours requirement. The attractive aspects of a legal career, such as a comfortable salary, an engaging and challenging professional career and the vast opportunity for career progression do not seem to outweigh the poor quality of life which many lawyers endure.

High stress levels, and the risk of mental illness are extremely prevalent in the legal industry.[39] However it seems that hard work, and working efficiently may not alleviate these problems. As I have noted above, the billable hours system requires lawyers to spend prolonged periods of time at work. There seems to be little incentive for lawyers to continue to find ways to work more productively, so long as they are completing tasks within a similar timeframe to their colleagues. Emphasis is not placed on work which is of a high standard, but the amount of time spent in the office. To a prospective lawyer, this seems to be an unrewarding and unappealing work environment.

It is difficult to find a solution to countenance this issue; graduate-level lawyers have little to no ability to change the way a law firm charges its legal fees. However, for law students who wish to work in the field of corporate law, the best path for career progression is to find employment in a large or mid-tier law firm.[40] Graduate positions in large and mid-tier firms are extremely competitive, and consequently individual law students have little choice but to accept the way in which law firms are run and charge their clients if they wish to remain employed.

Furthermore, the widespread practice of ‘padding’ timesheets is an undesirable feature of a potential career in the law. The unethical nature of this contradicts the fundamental values which govern the legal profession, which promote ethical conduct, adherence to the law and to making actions in good faith.

Aside from the benefits commonly associated with any professional occupation, such as a comfortable salary and a fulfilling career, there are several attractive elements which provide incentives for students to study law. These include the opportunity to act as an advocate for clients, to be a part of the legal system which protects the rules and laws which govern society and the notion that the law is a ‘noble’ profession which provides practitioners with the ability to help others and find meaning in their work. This is directly comprised by the pressure for lawyers to primarily focus on their firm’s economic interests through billable hours targets, which significantly detracts from the appealing aspects of the Legal Profession.

VI CONCLUSION

The ethical issues which arise as a result of the ‘billable hours’ method of charging legal fees has been shown to significantly undermine the integrity of the legal profession. Through the adoption of alternative billing methods, this integrity can be restored. The result of this would improve the trust which clients and the wider community have in the legal profession and reduce the conflict between the economic interests of a law firm and the ethical responsibilities the legal profession places on practitioners.

References

[1] Joanne Bagust, ‘The Legal Profession and the Business of Law’ (2013) 35(27) Sydney Law Review 27.

[2] Katherine L. Brown and Kristin A. Mendoza, ‘Ending the Tyranny of the Billable Hour: A mandate for change    for the 21st Century Law Firm’( 2010) 51(2) New Hampshire Bar Journal 66, 67.

[3] Gemma Mitchell, ‘References to the Kendal Report’ (2013) 40(9) Brief 37, 39.

[4] The Law Society of Western Australia, Report on the Psychological Distress and Depression in the Legal Profession, (2010).

[5] Brown and Mendoza, above n 2, 70.

[6] Ibid.

[7] LexisNexis, ‘Whitepaper May 2009’ (May 2009) <https://www.lexisnexis.com.au/pdf/lexisnexis-whitepaper.pdf>.

[8] ibid.

[9] Christine Parker and David Ruschena, ‘The Pressures of Billable Hours: Lessons from a Survey of Billing Practices Inside Law Firms’ (March 18 2011) <https://www.lsc.qld.gov.au/__data/assets/pdf_file/0020/106058/pressures-of-billable-hours.pdf>.

[10] Legal Profession Act 2007 (Cth) s 308.

[11] Ibid.

[12] Joanne Bagust, above n 1, 27-31.

[13] Ibid.

[14] James Allsop, ‘Professionalism and commercialism – conflict or harmony in modern legal practice?’ (paper presented at the Australian Academy of Law Symposium Series, 5 May 2009), 14.

[15] David Blades, ‘Lawyers, Billable Hours and Professionalism’ (2013) 40(9) Brief, 17.

[16] Parker and Ruschena, above n 9.

[17] LexisNexis, ‘An Investigation of the Billable Hour’ (4 October 2012) <http://www.lexisnexis.com/legalnewsroom/lexis-hub/b/careerguidance/archive/2012/10/04/an-investigation-of-the-billable-hour.aspx>.

[18] Brown and Mendoza, above n 2, 69.

[19] Peter Geraghty, American Bar Association Centre for Professional Responsibility, ‘When two plus two doesn’t equal four’ (June 2007) <http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/when_two_plus_two.authcheckdam.pdf>.

[20] Misa Han,  ‘Billable targets encourage creative time sheets’,  The Australian Financial Review (online), 12 December 2014 <http://www.afr.com/business/legal/billable-targets-encourage-creative-time-   sheets-20141211-125f9d>.

[21] LexisNexis, above n 13.

[22] Brown and Mendoza, above n 2, 68.

[23] Parker and Ruschena, above n 9.

[24] LexisNexis, above n 13.

[25] The Law Society of Western Australia, Report on the Psychological Distress and Depression in the Legal Profession, (2010).

[26] John Chisholm, ‘What are the client’s expectation of Australian lawyers – the end of the billable hour?’(paper presented at 36th Australian Legal Convention, Perth, 17 December 2009).

[27] Misa Han, ‘Hourly billing causes stress in legal firms,’ The Australian Financial Review (online) 2 July 2015 <http://www.afr.com/news/hourly-billing-causes-stress-in-legal-firms-20150629-gi0uuw>.

[28] Brown and Mendoza, above n 2, 69.

[29] Mitchell, above n 3, 42.

[30] The Law Society of Western Australia, above n 21.

[31] LexisNexis, above n 13

[32] Blades, above n 9, 12.

[33] Ibid, 14.

[34] Joanne Bagust, above n 1, 33.

[35] Brown and Mendoza, above n 2, 68-70.

[36] Brown and Mendoza, above n 2, 71.

[37] LexisNexis, above n 6.

[38] Ibid.

[39] LexisNexis, above n 17.

[40] Yale Law School, ‘The Truth about the Billable Hour’ (May 2015) <https://www.law.yale.edu/student-life/career-development/students/career-guides-advice/truth-about-billable-hour>.

Social Justice Forum #1 - Let's Talk About Sex! Transcript

JATL started off the year with a bang, holding its first Social Justice Forum of the year. Let's Talk About Sex focusses on how the law affects the safety outcomes of marginalised and stigmatised people in Queensland, in the context of sex and sexuality.

We heard from Emile McPhee, the Executive Director of LGBTI Legal Service, Sharna Quigley from Queensland Positive People and Clarissa, a Queensland-based sex-worker. A big thank you to Rose and the social justice team for organising such an excellent event, and don't feel too bad for missing the first forum - stay tuned for the next one!

Emile McPhee - LGBTI Legal Service

When seeking feedback on this, I got told to prepare myself for some hefty backlash. I’m hoping that nothing I say is too controversial, but please hold on any heckling until the end. We’re a long way from where we were pre-1990, when homosexuality in Queensland was illegal. So far from that now that there’s now earnest discussion on expunging criminal convictions for consensual homosexual acts, in recognition that this should never have been prosecuted.

However, we’re still not where we should be.

One of my main concerns is the unequal age of consent which remains in Queensland, unlike any other jurisdiction in Australia, and one of few around the world. Section 215 of the Criminal Code establishes an age of consent of 16 years. Below that age, a person cannot consent – regardless of what they say. However, section 208 retains the offence of ‘unlawful sodomy’, contained under the Chapter ‘Offences against morality’.

That section provides that any person who sodomises someone under 18, or permits a male under 18 to sodomises them, is guilty of a crime. The maximum sentence is 14 years imprisonment – the same as any other sexual act with someone between 12 and 16.

This is out of touch with the rest of Australia and the world. Across jurisdictions, the age of consent varies – typically between 16 and 18 years of age. However, in the vast majority, the age of consent does not depend on the type of sexual act. Three arguments are typically put up against reform of this. First, that it is not discriminatory against gay men. In my mind, this is an incredibly weak argument. Granted, it is not directly discriminatory – sexuality is not a relevant consideration. However, there can be no doubt that it is indirectly discriminatory – a rule which applies to everyone in the same way, but has a worse effect on some people than others.

Despite prohibition of this sort of discrimination under the Queensland (and Commonwealth) Anti-discrimination Acts, the ‘unlawful sodomy’ provisions remain.

The second argument is that it’s not prosecuted, so it’s not an issue. I can’t think of a worse reason against law reform. If anything, it is a cause for law reform – if an offence is not prosecuted, does that not indicate that it should no longer be an offence? To take things to extremes (and please pardon me for the slipper slope fallacy I’m about to commit). Imagine if there was a law prohibiting women from voting (not that hard to imagine), or men from working with children. Now imagine this law was never enforced – it’s just a ‘remnant’ of times gone by. In what way is that a valid argument not to remove the offence?

A related argument is that, where the anal intercourse is consensual, no-one would ever be the victim to bring charges. Unfortunately, that’s not the case. Take, for example, a homophobic parent who encounters their seventeen-year-old son having anal sex with his eighteen-year-old boyfriend. The father could be the one to have charges pressed against the boyfriend. This might sound like an extreme example, but last year at the LGBTI Legal Service we saw someone who was facing similar circumstances.

He was 18, watching porn with his sixteen-year-old boyfriend. Unfortunately, the boyfriend’s father came into the room. That father pressed charges against the eighteen-year-old for indecent dealings.

The final argument, and it is trickier, is that anal sex is somehow different from every other kind of sex, and that people are not mature enough to make a decision to consent to it (whether giving or receiving) until they are 18. Whenever this argument is raised, things start to get emotive. Most gay men (at least) would be fairly affronted by such a position. I know I certainly am. However, those on the other side of the fence remain adamant that it is a detrimental act and that the best interests of children everywhere require that they be more mature before progressing ‘down that path’.

I think there is sufficient evidence against this proposition. And there is even more suggesting that it’s discriminatory criminalisation that endangers young people.

Another issue with the offence of ‘unlawful sodomy’ (yes, there’s more) is that it is not well known. It has almost mythical status, which is concerning given that it actually exists. Acts are criminal regardless of whether you know they’re a crime. So, young people may be committing a crime without realising it. The bigger issue is that the mythical status only helps to muddy waters and make it all the more difficult for the LGBTI community and professionals they interact with to properly understand the law, and receive or provide information.

All this creates a widespread and at times unnoticed stigma that homosexual sex is bad and to be discouraged, within not only the LGBTI community, but also the community more broadly. Retaining a separate offence of ‘unlawful sodomy’ is a serious impediment to the delivery of safe-sex education to young LGBTI people. It creates a difficult situation for teachers and other professionals, who may have an obligation to notify authorities about young people engaging in illegal anal intercourse. What young person would approach a teacher or adviser, if the response would be ‘you can’t do it, and if you do I might have to report you’.

The effect of all this is that young people are less likely to come forward about the sexuality, less likely to seek or obtain advice on safe sex and less likely to engage in safe sex. This is not in anyone’s best interest.

It’s interesting in this light to reflect on the recent and rather forceful backlash against the Safe School Coalition in Queensland. For those who don’t know about Safe Schools, it’s an anti-bullying program that offers resources and support to enable staff and students to be more inclusive of homosexual, intersex and gender diverse student, staff and families. According to the Australian Christian Lobby, however, it promotes ‘radical sexual experimentation’ and cross dressing.

On a less extreme note, some say that it is too sexual and advanced, and denies children their ‘innocence’. The program is aimed at secondary schools – when people are reaching puberty. To my mind, there is no better time to talk about gender and sexual diversity than when these issues are, biologically, coming to the forefront. Particularly in the case of intersex or transgender youth, this can be an exceptionally difficult time, and it is critically important to give them the support and information that they need. Instead, we’re providing only heteronormative sex education at that age, and holding back resources on anything else until some unknown time, perhaps once they’ve already lost their innocence.

By delaying the information sharing until a later point, we are doing nothing to promote acceptance or tolerance, are are instead fostering a divide between straight male/female individuals and their LGBTI peers. Again, this only goes to create uncertainty and a lack of information within the LGBTI community.   Those who identify as LGBTI are not only shown they are ‘different’, but also that they must learn things for themselves. This pushes their lives further into the unspoken underworld and continues to contribute to the feelings of alienation that many LGBTI youths (and adults) experience, leading to increased rates of depression and unsafe sex.

We need to continue to create a more open and accepting community. Young people (and adults) should be taught that there is nothing ‘different’ or wrong about LGBTI people, and that everyone is equal. Retaining laws like ‘unlawful sodomy’ and teaching only heteronormative sexual education is a serious impediment to this.

Repealing section 206 and implementing programs like Safe Schools are not a complete fix. But they are an important step forward in the continual journey towards true equality.

It’s not a debate about morality / rights or wrongs. It’s a different approach.

Sharna Quigley - Queensland Positive People

I’ve got a few speaking notes, if I’m going over time let me know because I love to talk (especially about sex). I’m an advocacy officer for QLD positive people, a peer-based organisation representing people with HIV in QLD, and when I was approached to speak today I thought what an amazing opportunity I’ve been given. When I went through Law School, a long time ago, health and HIV never came up. Law school is a bit of a snapshot of the ‘bigger picture’ and when you think about law it’s also important to think about safety.

In fact, often legal mechanisms create vulnerability, and vulnerability is what I see often for people living with HIV in QLD, because we do not have a very effective legal framework for people with or at risk of HIV.

So what laws interact with HIV in Queensland? It gets a bit murky and muddy because there are two pieces of legislation. Firstly, there’s a Criminal Code, and then there’s the Public Health Act.

In Queensland, it is a criminal offence to intentionally transmit HIV with the view to do harm. It also makes it a criminal offence to commit grievous bodily harm, which includes transmitting a serious disease to someone. The stakes are high here, with the offence of intentionally transmitting HIV of having a maximum sentence of life imprisonment, whereas committing grievous bodily harm has a maximum sentence of 14 years.  

Then we look at another piece of legislation that goes to regulate HIV. Public Health Act defines HIV as a controlled notifiable condition. The Public Health Act is less punitive, but it’s just as dangerous as the Criminal Code. There’s two offences here. Public Health Act makes it an offence to recklessly place another person at risk of HIV. It also creates the offence of recklessly transmitting HIV. One’s about risk, and the second is about actual HIV transmission.

The Public Health Act is also important for people living with an unknown status, or a negative status. There is a guiding principle in s 66 of the legislation that says, effectively, that everyone has the responsibility to practice safe sex. Though there’s no penalty attached to this, it’s important to note that the Public Health has this ‘mantra’ of shared responsibility.

The Public Health Act also gives the Queensland Department of Health a range of overarching powers when it comes to controlled notifiable conditions. It’s important to note that ‘controlled notifiable conditions’ also includes syphilis and herpes, but we don’t really see them going through the courts. These powers include what’s called a ‘Managing Guideline’ – QLD health has a guideline for people living with HIV who could put other people at risk. Within that guideline, there are various steps. Note that it is a defence if a person discloses their status before unprotected sex, and the partner accepts the risk, the person cannot be persecuted.

Namely, a person living with HIV does not have to disclose their status as long as they’re practicing safe sex. There are many biomedical advances when it comes to HIV, including the result of an ‘undetectable viral load’, which is where somebody living with HIV, after taking their medication, has suppressed the virus so much that the virus is technically undetectable. It’s not a cure, but databases show that a person with an undetectable viral load, without the use of prophylactics, has a very very small chance of transmitting HIV. Data even shoes that undetectable viral load is safer than relying 100% on condom.

Unfortunately, the law is slow to catch up with these technical advances. We don’t really have a mechanism to say ‘hey prosecutors, don’t prosecute this!’ For instance, go back to the guidelines for a moment. If it comes to a clinician that a person is engaging in unprotected sex without disclosure, it invokes ‘mandatory counselling’. If the person is unwilling to moderate their behaviour, then there’s ‘escalation’, which includes potential detention or court orders. If a person is still unwilling to change their behaviour, then referral to the police for charges can be made out.

Overall, the public health system and the guideline has been very successful in averting transmission, and empowers people to take control of their health and sexual health as well. Public Health system is also confidential, so privacy is a must, not like criminal prosecutions, as there are no suppression orders in the criminal process.

When we’re talking about safety and vulnerability, it’s important to note that we as an organisation are opposed to using the criminal law to regulate HIV transmission exposure. We would prefer a public health process, that understands the vulnerability or the inability in regards to someone disclosing their status. More often than not, HIV is not spread by intention. It’s in the course of ordinary consensual sex. The blunt tool of the Criminal Code actually furthers infection. Criminalising the disease sends a really wrong message; it encourages risky behaviour and, more importantly, people are more unlikely to test.  It’s safer to not know your status, because you cannot be potentially prosecuted.

It also stigmatises people living with HIV. Media reporting on HIV is horrible. Furthermore, there’s no restorative justice element in the Criminal Code, like there is in the Public Health Act. It does very little to assist someone, and it furthers that HIV is a death sentence, when we know that that’s not the case; it’s a chronic, manageable disease. Life expectancy for someone with HIV, diagnosed at a reasonable time, and who takes their medication, is a normal life expectancy. In some developing countries, there’s data coming out suggesting that people living with HIV have even longer life expectancies, because there’s a lot more monitoring. Basically, HIV is not the death sentence that it is painted as by the media.

Further, safety as protection is important. There are lots of different reasons why we have laws, but I think that an important element is law as safety and protection. Unfortunately, people living with HIV have very little protection from the law, especially when it comes to intimate relationships. I’ve seen quite often that the law mandates disclosure, and a person may want to do this, but often disclosure is used as weapon. It happens a lot in relationship breakdowns. As soon as disclosure happens, things sometimes fall apart. And then, the partner might threaten a person by ‘outing’ their status. In this narrative, there’s no protection. Privacy exists for doctors, clinicians, companies. There is no protection for the individual.

I know that this is a sort of somber way to end this, but there is very little protection, and I think that it is important for emerging law students to be aware of this. This is the nexus between real life and practice, and learning about reform. 

Clarissa - Sex Worker

I’m going to talk about me. My name’s Clarissa, and I’m kind of like you (but maybe not as smart). I wake up in the morning, I press snooze a lot and then panic because I’ve slept in, I go to University, like to go out and eat lots of food, I really like karaoke and I have three jobs. Two of them are casual, and the other one is sex work.

What is sex work? There are many different types of sex work. People tend to think of the ‘dead body on Law and Order’ or something similar, or maybe The Secret Diary of a Call Girl, but there are completely different types. Sex work covers lots of parts of the industry – cam workers, porn, phone sex, strippers. Some people work in hotels, I work in a brothel and it’s great (this is called full-service sex work). It doesn’t mean that I sell my body or my soul – I just sell sex, and getting paid for sex is pretty cool. I offer my time, and there’s certain things I’ll do in my time.

Importantly, we’re just ordinary people, students, mums, wives. We sit around, eat food, talk to each other. I also really like my work, though it took me some time to get into it. The media is constantly telling you that you’re ‘gross’ for being a sex worker, but it’s really empowered me. I used to be very insecure with body image and care too much about what other people thought of me, and now I just don’t care (because I’m amazing).

Queensland, unfortunately however, is not the perfect place to live in. Queensland Legislation dictates how sex workers work. Full service sex workers can work in two ways. Firstly, you can work privately, like in your home or a hotel. Alternatively, you can work at a brothel. There are very stringent rules dictating what you can and can’t do depending on what type of full-service sex work that you’re doing. For instance, you cannot work in an escort agency, massage parlours, on the street corner and if you work alone, you’re not allowed to work in a group. For brothel workers, you’re given a choice of 25 brothels in the State to work at, and most of them are around Brisbane, Sunshine Coast and Gold Coast, though there are a few around elsewhere. This means, for example, that if you have a falling out with one of the brothel owners, finding work can be very challenging. Further, many of them would choose not to hire someone like me because I’m too big.

As much as I enjoy my work, the laws make it tough. Sex workers working alone are legally not allowed to advertise what they do. For a worker working by themselves, this can make business extremely difficult. Imagine you were opening up a coffee shop and you want your business to be successful, but you can’t tell anyone that you’re making coffee and you can’t advertise anything that you’re doing. Like I mentioned before, they also have to work alone. This means no support group or network, and it also means no threesomes.

Brothels also face legislative constraints from the Prostitution Licensing Authority. Authorities are extremely stringent when it comes to health and safety – so much so that a brothel can be faced with a $20 000 fine after being audited if a bed sheet has a little bit of lube on it. Further, obtaining a brothel licence is very expensive. Obtaining a licence is also almost ridiculous given the number of rules associated with licensing. For instance, you can’t even be associated with someone with a liquor licence, or else you won’t get your licence. An example of this is the man and wife who own the brothel where I work. Their son would not be able to open a strip club, because that would ruin his parent’s work.

These rules are apparently in place for our protection, but I don’t feel safe with them; I want to be able to do what I want to do. I found out recently that it is legal for authorities, namely the police force, to use entrapment against sex workers. For instance, a police officer undercover could suggest seeing two sex workers working alone – both workers would go to jail, or be fined for not working alone. Instead of allowing people the autonomy and freedom to handle their bookings, it seems that the authorities strive to just put us in jail.

Various sex worker rights groups, like Scarlett Alliance, have provided the government with alternatives, feedback and recommendations, only to be ignored. We can improve these laws, but unfortunately it sometimes seems that the State is resistant to change or even going backwards. In 2012, changes were made to the Anti-Discrimination Act that allow hotel owners to essentially kick out anyone they think is a sex worker. They don’t even need proof, they just have to suspect that you’re a sex worker. Current legislation encourages people to work alone in isolation. It also makes it very difficult for sex workers to uphold their other jobs, and often people are laid of on discriminatory grounds because they choose to do sex work. Sex work can even lead to you losing your children, because apparently you’re not fit to be a mother if you are also a sex worker. You want to have support and help, and not feel that people are constantly out to get you for what you choose to do.

NSW, on the other hand, has relatively good laws when it comes to sex workers. In 1996, sex work de-criminalised and police workers were removed from regulation due to their corruption. Sex workers are supported instead of being victim-blamed. For Queensland to move forward, they really just need to listen to us, instead of deciding on our behalf what is beneficial. Thank you.

Rose: Thank you Clarissa, I especially liked your point about police corruption. I’d like to open up the floor to anyone who has questions.

Audience Member 1 : You were talking about educating Safe Schools program, do you think that this could be incorporated into human rights school education? I don’t know much about the program, but I know about the human rights aspect.

Emile: I think it sounds great. Safe Schools is a program that is very tailored, a lot of thought has gone into it. I do think though that the broader you go the better, as long as you manage to fit everything in there. To me, the main point of Safe School is to make sure that everyone is treated equally and to remove the discrimination. I think that this could totally be done through a broader human rights education model. I think also there would be less backlash then there is currently, as people are less likely to make a fuss over something that’s a ‘human right’ initiative rather than just minority rights, which is this case.

Shan: There is a current e-petition in favour of the program, and one that is anti Safe Schools. The petition that is anti Safe Schools currently has more signatures than the petition for the program, so if it’s something that you’re aligned with I suggest that you check it out.

Audience Member 2: You said that in QLD you don’t need to disclose your HIV status to anyone other than your sexual partner, I believe that in NSW it’s the complete opposite. I was interested to hear your thoughts on how the NSW legislation increases the stigma towards AIDS/HIV positive people.

Shan : In NSW it’s tricky, because there is mandated disclosure, but they amended their Public Health Act to make a defence if you’re having protected sex. This makes it more-or-less the same as it is in Queensland, i.e. you don’t have to disclose unless you’re engaging in unprotected sex. In NSW, it is that you do have to disclose unless you’re engaging in protected sex. The only difference really is that the onus has shifted a little bit. As it stands currently, a lot of advocacy organisations in NSW are trying to repeal disclosure, so this is really positive. This depends on the government, but anything to de-stigmatise people living with HIV/AIDS is a positive.

One of the detriments that we see with mandated disclosure laws is that it gives this reverse effect of safety. People think that because they’re mandated to disclosure, they’re going to tell me that they’re positive. We’ve found that a lot of the time, prognosis is coming from people who think that they’re negative because they haven’t been tested. A slightly older study showed that the average time between someone who has acquired HIV and the time that they actually get tested is approximately four and a half years. Medically, HIV is most infectious right after the virus takes over the system, and a lot of infections are coming from people who don’t know their status. People aren’t regularly testing, or might have multiple partners. Basically, you cannot rely on mandatory disclosure to solve this problem.

Audience Member 3 – What happens if you disclose to an authority that you’re having unprotected sex and then continue to do so without telling them? How does disclosure work if it is reliant on honesty?

Shan: In practice we find it really discretionary. We have great clinicians who explain a person’s obligations fully and completely. There also clinicians who may never have had experience with HIV/AIDS, and all of a sudden decides to call the police. Basically, disclosure based on honesty is very effective as long as the clinician is understanding and knowledgeable.

“We never wish anyone gets HIV, but we want a safe debate with facts, and not fear.”

We’ve never actually had a prosecution under the Public Health Act, but there’s currently one under the Criminal Code that is currently at the High Court, and is looking at ‘intention’. The case is N 61. With the Public Health Act, there are five steps. Firstly, counselling, secondly counselling with a psychiatrist, thirdly someone goes to panel. The panel compromises of one person living with HIV, and they decide what happens to the person ‘on trial’ so to speak. So far, nobody has gone above the third stage. However, there are no ‘rights’ to appeal at the Public Health Act. It doesn’t have the protections for the person being complained about because it’s punitive.

Audience Member 4:  What do you think is a good solution to encourage people to test for HIV/AIDS?

Shan: there are many solutions. I hate to harp on about education, but education is the most important thing. It’s also important to break down barriers to testing. A lot of people aren’t comfortable accessing a testing service, so trying to increase those services is very important. We’re trying to push home-based testing for people who do not want to go to an external place until physical symptoms start to manifest themselves. This cannot be done without breaking down the stigma around testing.

Emile: I agree, I think one of the big things is ‘I don’t know if I want to find out’ , and this needs to be flipped into positive thinking. There needs to be less fear of getting tested. It’s not something that’ll be changed overnight.

Shan: One of the testers in our clinic says that the majority of people that he sees, and he uses rapid tests that take about 20 minutes, are not worried about actually having HIV. They’re not worried about the therapy or having to take medication for the rest of their lives. They are worried about disclosing when they’re having sex, that’s why people are on intensive care, because they start having suicidal thoughts that no one could ever love them, or that they’d never be able to have sex again. The actual HIV part of it isn’t such a big problem.

Clarissa: When you work in a brothel, you have to be tested legally every three months, but mostly sex workers are pretty good with taking care of their health. They also have the lowest rate of STIs. It’s the clients who aren’t educated, and they don’t disclose. A lot of the times they’ll ask you to do something without prophylactics, so you just have to turn it around on them and ask them ‘do you think I am STI free?’, and then they stop and think about it.

Shan: It’s hard too because if you test positive, you’re not allowed to work in a brothel but have to work as a single sex worker. A clinician cannot give you your three-monthly certificate if you test positive. There’s a further stigma here – there’s no reason that a person with HIV can’t work at a brothel, and you no longer have the choice to work in brothel environment and you’re forced to work alone, navigating something difficult without any backup.

Emile : we’ve said the word ‘stigma’ a lot today, unfortunately it’s true.

Audience Member 5: What can the law do the alleviate stigma? Do we need to do things besides legislative changes to help this?

Emile: I think that one of the early steps to alleviating stigma is changing the law to even it out to fix up the kinks. From on perspective, it can be the illegal age of consent, from another perspective disclosure rules. I think though that the bigger change has to come from the community, which will take a lot longer. The problem is that it is a vicious circle, because the longer it takes for law reform, people start to rely on the existing, discriminatory laws, which perpetuates the idea for law makers to assume that no one’s asking for change. A lot of it is about educating people – people need to stop bringing moral underpinnings and beliefs into the picture, and be reasonable and look at the evidence. 

The Silent Crime: Usury, the Enslaver of the Masses

Written by: J. Lee

We live in world in which transnational and organised crime are increasingly pervasive. The rise of technology, globalisation and increased ease of travel across borders has indeed facilitated transnational and organised crime. Law enforcement around the world rightly treats drug trafficking, identity theft, human trafficking, fraud, child exploitation and money laundering as serious crimes. However, what most do not realise is that financial crime is no less serious than such crimes, if not even more serious and insidious.

The Insidiousness of Financial Crime and the Fear It Instils

There is something about financial crime that makes people think it be something less serious compared to crimes against the person, such as human trafficking and child exploitation. Yet, there is something about it that people recognise to be seriously wrong, not merely because of the social and economic consequences, but rather something more fundamental. Human trafficking and child exploitation are undoubtedly serious crimes. However, simply because a crime does not directly affect the person does not mean it is no less serious than such crimes in terms of its morality. 

The nature of financial crime is an insidious one. Unlike the crimes that people in general rightly condemn such as child exploitation and violence, what makes financial crime so insidious is its guise of harmlessness. That is exactly what makes it so insidious. People tend to think that is of lesser importance, if not nominal importance to fight financial crime since it only concerns finance not human lives.  Moreover, where financial crime is recognised to be serious, it is regarded to be serious because of the social consequences and the treat to other businesses.

However, this I believe does not get to the root of financial crime which I believe is not merely concerned with regulation of markets and the economy, but rather pertains to that which is fundamental. Financial crime is immoral in and of itself. For reason, the author argues, it should be treated as a serious crime, in the same way that murder is treated as immoral in and of itself, such that it should be treated as a serious crime.  In particular, the one financial crime which should be but is not is usury.

The Mystery of Usury

The word usury comes from the Latin word ‘usus’ which means ‘a use’. The term originally meant any charge on a loan, not just ‘excessive’ charge on a loan. The term was used to mean an excessive charge on a loan to justify charging interest on a loan.[1] Ancient societies, from ancient Sumerians to the ancient Romans, as well as the Medieval Europe were terrified of usury.[2]   On the other hand, modern society not only thinks usury is normal and necessary for an economy to function effectively, but that usury is not even an issue. This raises two questions. The first is why is that ancient societies were not only fearful of usury, but terrified of it. The second question what is it about the modern mind that makes it so hard to understand why usury is wrong, and therefore, a matter of justice.

It is all too easy for the modern person to think that ancient societies were terrified of usury because they were ‘backwards’, ‘uneducated’, ‘uncivilised’ and ‘unenlightened’. However, there were indeed some ancient societies which would be considered by modern standards to be ‘advanced’ for their time, such as the Ancient Sumerians, with economies that were credit based, and not based on barter.[3] Sumerian stone tablets recording credit transactions have been found, providing evidence that such transactions did exist, even with one which recorded a person telling another to not charge him any interest. [4] So, what was it about usury that made this diverse range of ancient societies terrified of usury?

The Terror of Usury vs. the Enticement of Usury

Ancient societies recognised the bondage that it would cause to people, owing to the inability to repay debts to the creditor. It was not merely because people knew they would have to sell themselves into slavery to work off the debt. It was because people in general recognised that borrowing money and being in debt to another as morally wrong that a debtor selling oneself to slavery was seen as obligatory. This is in stark contrast to modern society which believes that each individual has a right to borrow money to whatever extent one chooses, and that the debtor has a right to pay off that debt according to how one sees fit.

Modern society believes that the two fundamental things upon which society should be organised are rights and liberties, not obligations. While there may be obligations recognised by modern society, those obligations arise only in relation to rights and liberties. There is no such thing as an obligation independent of a right or liberty in the eyes of modern society, unlike ancient societies, and also more ‘traditional’ societies which believe obligations, rather than rights or liberties, should be the fundamental norm for society to be organised.

As such, the ethic of modern society is that that which maximises the rights and liberties which are regarded to be of the higher importance is the right thing to do. Since borrowing money is regarded to be a right on part of the debtor, rather than that lending money to be an obligation on part of the creditor, it follows that usury is simply a charge that one pays for exercising one’s “liberty” to borrow money from another who provides that “service” of lending money. Therein lies the problem.

The standard view in economics and law is that borrowing money is the exercise of one’s liberty. However, is borrowing money really an exercise of liberty, or is it really bondage? One might argue that it is liberty because a person chooses to. However, little do such people realise that attached to the borrowing of money is the obligation in the moral sense, to repay that debt which subjects the debtor to the creditor. This subjection of the debtor to the creditor renders the debtor a slave to the creditor who has the moral ‘right’ to demand repayments of debts. Thus, borrowing money is not liberty at all, but bondage to the creditor.

What is so bad about usury?

Many people in modern society are puzzled and even shocked when people even raise interest on a loan, that is, usury, as an issue. Usury legitimises debt slavery, and is a means of making profit out of it. Although a person who chooses to get into debt ultimately chooses to do so, often in spite of interest repayments, it remains a wrong on part of the usurer to charge such usury, because it is to profit of the debt slavery of another.

Slavery need not be the literally trading of human beings in which property ownership is exercised over persons. What makes slavery an abominable practice, is that it keeps a person in bondage to another, as a means of seeking to reduce the dignity of another. Likewise in the case of debt slavery, it is a means of seeking to hold a person in bondage to another, also seeking to reduce the dignity of another.

Usury is precisely that which seeks to hold a person in bondage to another. It cares not for the person as a human being. It is cold, callous and cruel, making a profit out of the debt slavery of another. It is a crime.

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[1] The Scholastic Analysis of Usury, J Noonan, 1957.

[2] Speech by Tomas Sedlacek, Carnegie Council for Ethics in International Affairs, ‘Economics of Good and Evil: The Quest for Economic Meaning from Gilgamesh to Wall Street’, delivered on October 5, 2011, at <https://www.youtube.com/watch?v=VteEjsYBZKA>.

[3] Debt: The First 5000 years, Chapter 2 ‘The Myth of Barter’, D Graeber, 2011.

[4] Debt: The First 5000 years, Chapter 2 ‘The Myth of Barter’, D Graeber, 2011.

Citizenship, Rights and the Need for Legislative Reform in Australia’s Landscape for People with Disability

WRITTEN BY: MICHELLE O'FLYNN

Director Michelle O'Flynn, with Dan O'Gorman SC

Michelle O'Flynn is the Director at Queensland Advocacy Incorporated (QAI). She is a former president of Queensland Parents for People with a Disability, and a longstanding advocate for the rights of people with disability.

QAI is an independent, community-based systems and legal advocacy organisation for people with disability in Queensland, Australia. They provide individual legal advocacy in support of persons whose disability is at the centre of their legal issue.

Earlier this year, QAI worked with Allens lawyers to develop the 'Legal Capacity Handbook,' as reported on the JATL blog by Monica Taylor from the UQ Pro Bono Centre.

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Australians in general, and our politicians in particular, believe we are a fair and just society, and yet are blinkered to the government-sanctioned acts of disempowerment, bondage, drugging and imprisonment of our elderly and people with disability. These acts are imposed upon vulnerable people with disability with the approval of the very bodies charged with their care and protection. Queensland legislation that was purportedly developed to ensure that these practices were not abused has been modified to the point where it has become a ‘how-to guide’ for service providers.

Restrictive Practices

The use of Restrictive Practices on people with an intellectual or cognitive impairment is an important issue that touches on notions of human rights, equality, autonomy, choice, dignity and respect and pertains to a highly vulnerable, marginalised and disempowered group in our society.  Despite the enshrined legislative principles of ‘least restrictive’ and ‘last resort’ many people with disability in Australia are routinely subjected to behaviour modification or restrictive practices including chemical, mechanical, or physical restraint, seclusion, containment, detention or time out.  These practices are discriminatory and may constitute ill treatment and cause physical pain and discomfort, deprivation of liberty, and prevent freedom of movement

In 2014, Commonwealth, state and territory disability ministers endorsed the ‘National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector’.’ The focus is largely on when and how to use restrictive practices and NOT on seeking to prevent use. Furthermore, it only applies to disability services and fails to recognise that restrictive practices occur in other situations.  Finally, it appears to have been developed without reference to Australia’s obligations under the United Nations Convention Against Torture (CAT) or indeed the Convention on the Rights of Persons with Disabilities (CRPD).

Restrictive Practices are imposed upon vulnerable people by those who abuse their power and exert domination over the person.  These acts are perpetrated because of an inability to understand, interpret or respond appropriately to behaviours that challenge the support service. Yet it is the person who bears the brunt of this inability, with insufficient onus on the service provider to take the time to know the person well enough to support them without these acts.  

Restrictive practices can constitute humiliation and punishment and may be imposed as a means of coercion, discipline, convenience and even retaliation by those who provide support.

QAI asserts that the use of Restrictive Practices is a violation of human rights on the grounds that such treatment, if applied as a societal norm to people without disability, would not be tolerated and would be viewed as criminal conduct.

The person viewed as exhibiting the behaviours of concern is restricted, thus exacerbating the problem.   Therefore the perceived solution is to apply more or longer use of the particular restrictive practice or practices, entrenching and sanitising this approach as acceptable for the long term.  The person gains an ill-deserved reputation that is difficult to shed and any reaction to the application of such practices is met with an increase in their use, and so the cycle is unending.

Further, the existence of permissive legislation that allows the imposition of Restrictive Practices also implicitly condones the use of violence and abuse as a means of relating to a person with a disability by a service provider as part of their day-to-day interaction.  This has significant implications for the culture of institutional and residential settings. QAI maintains that the use of Restrictive Practices constitute cruel, inhumane and degrading treatment under the Convention Against Torture.

National Disability Insurance Scheme

A firm commitment to the values of autonomy and self-determination for vulnerable people with an intellectual or cognitive disability is necessary in the context of the National Disability Insurance Scheme. This requires that they are presented with real choices, enabled to express their views and preferences and have their autonomy and right to make decisions respected (irrespective of whether their choices may be objectively considered to be ‘good’ or ‘bad’).

People who live under the imposition of Restrictive Practices are excluded from being able to employ their own staff and self-direct or self-manage their supports and/or funding. While we recognise that this is currently the national position for the NDIA, QAI maintains that this discrimination is unfair and imposes severe limitations on the choice and control available to the most vulnerable people who are eligible for NDIS support yet could potentially have the most to gain from the opportunities that the NDIS may present. 

Support for Decision-Making

A support for decision-making approach should be adopted for all matters concerning people with disability.  Support for decision-making is about encouraging people with disability and their informal supporters so that guardianship and administration orders are, in some cases, no longer necessary.  Informal supporters conduct their support with morality that respects the dignity of risk, and allows people with disability to make mistakes, to learn, build capacity and to truly make their own decisions.

Queensland Guardianship legislation has the most progressive guiding principles to enable a person subjected to Guardianship orders to be involved in decisions being made about their lives.  While the stated purpose of the Guardianship and Administration Act 2000 (Qld) is to be fulfilled by a number of actions and guiding principles and by actions such as ‘encouraging an adult’s support network to be involved in decision-making for the adult’ there is no mechanism to ensure that this is respected and indeed enforced.  New processes that incorporate monitoring of diligence and fidelity to these principles and actions to ensure that the process is inclusive, valid rather than superficial, and by the imposition of penalties for failing to do so would enable this critical element of self-determination and citizenship rights.

A key principle of the Convention on the Rights of Persons with Disabilities is that people with disabilities have a right to recognition everywhere as persons before the law, a right to enjoy legal capacity on an equal basis with others, and that States parties must take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 

QAI holds the position that a national approach to support for decision making is not only the best approach but also one of necessity under the NDIS.  It is important that the Federal Attorney General, together with state AG’s and Public Advocates, engage with the peak representative organisations of banks, building societies, commerce and Centrelink rather than trying to negotiate state-by-state reform.  The authority of government and Centrelink and the Australian Tax Office (which is already aware of plan nominees executing NDIS funded supports) will go a long way towards alleviating the issues that individuals have encountered with individual banks etc. 

The introduction of the National Disability Insurance Scheme has been optimistically received as potentially bolstering autonomous choice for persons with an intellectual or cognitive impairment in all areas of life. When coupled with the guiding principles articled by the CRPD, the intent and purpose of the NDIS is to proactively elevate a person with disability to full citizenship in all respects. Accordingly, while the NDIS facilitates a comprehensive program for the management of services available to people with a disability, it is intended as more than a mere funding stream to enable disabled people as consumers in a marketplace. As Duffy and Williams assert, the NDIS must develop and maintain the following two things:

1. A clear public account of what it means to be a citizen. It is only if we know what we mean by, and expect from, citizens that we can have any sensible conversation or research process to determine whether the NDIS is successful in its first goal: ensuring people get what they need to advance their life chances in support of citizenhood.[1]
2. Work hand in hand with people living with disability and their families to make sure the process feels respectful, effective and enabling at every stage. The NDIS process must be co-designed with people living with disability; but even more importantly for the future it must be accountable to them.

Support for decision making as a means of exercising legal capacity will also deliver many people from the cycle of recidivism within our criminal justice system and indefinite detention within forensic facilities.  To date in Queensland people with disability who are held in secure forensic facilities have not been convicted of any offences but are subject to terms of incarceration with no end in sight.  All forensic matters must have a predetermined time-frame which will provide impetus to ensure that the programs of habilitation, education and reintegration to community will be of high quality, genuinely tailored to each individual’s needs, and delivered with consistently appropriate support.  The Forensic Disability Service in Queensland purports to deliver such programs but without any time frame to each person’s forensic order, there is little to ensure that people are not incarcerated beyond what one could expect from a general prison sentence.  Indeed, without this measure one could question whether the detainees are a means towards the self-fulfilling prophesy.

When an approach of respect, autonomy and enablement is integrated with the practical safeguards required by people with a disability, in terms of their supports and assistance from the right relationships, we return control and respect to marginalised people.

[1] The Road to NDIS: Lessons from England about Assessment and Planning (JFA Purple Orange, 2012).

Further Information

QAI's Independent Review of the Operation of the National Disability Insurance Scheme Act 2013 (Cth) [PDF]

Position Statement Regarding the Use of Restrictive Practices on People with Disability [PDF]

Shining light on a closed system through an examination of forensic disability orders
for persons with an intellectual or cognitive disability [PDF]

QAI’s position statement on the Forensic Disability Service [PDF]

QAI's submissions to the Senate Standing Committees on Community Affairs [PDF]