2016 - Vol 41(4) - Harm In The Home

AltLJ41-4-cover-150

Addressing domestic violence

Detention dilemmas

Media signals

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Strengthening the web of accountability: Criminal courts and family violence offenders

Pauline Spencer
Article

altlj-41-4-web-of-accountability-150Family violence is a significant problem in Australian society. In 2012, an estimated 17 per cent of women and 5.3 per cent of men had experienced physical violence and an estimated 25 per cent of women and 14 per cent of men had experienced emotional abuse by a partner.1 Family violence causes a great degree of harm. On average, at least one woman a week is killed by a partner or former partner in Australia.2 Of those women who experience violence, more than half have children in their care.3 It has been estimated that violence against women and their children cost the Australian economy $13.6 billion per year.4

There have been renewed efforts to prevent family violence and improve the safety of victims through the Australian government’s National Plan to Reduce Violence against Women and their Children 2010–2022, the establishment of the Australia’s National Research Organisation for Women’s Safety (‘ANROWS’) and two major state-based inquiries — the Special Taskforce on Domestic and Family Violence in Queensland and the Royal Commission into Family Violence in Victoria.

(2016) 41(4) AltLJ 225

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Has he been violent before? Domestic Violence Disclosure Schemes

Jane Wangmann
Article
altlj-41-4-domestic-violence-disclosure-150

My daughter [Clare Wood] wasn’t stupid. If she had known about that man’s past she would have taken herself out of there in a heartbeat.1

Clare Wood was killed by her former partner George Appleton in England in 2009. Following her homicide it was revealed that Appleton had an extensive history of violence against his previous partners. This revelation resulted in calls to introduce a mechanism to enable people who may be at risk of domestic violence2 to find out whether their partner has perpetrated domestic violence in the past. In 2012 a Domestic Violence Disclosure Scheme (‘DVDS’), known colloquially as ‘Clare’s Law’, was piloted in England and Wales and has since been rolled out. These schemes are proving quite popular; Scotland and New Zealand introduced DVDSs in 2015, a pilot commenced in NSW in 2016,3 and interest has been expressed in Queensland4 and South Australia.5 However, the Royal Commission into Family Violence (‘RCFV’) in Victoria and the Law Reform Commission of Western Australia did not recommend a DVDS for their respective jurisdictions.6 The RCFV was of the view that rather than ensuring safety such schemes may provide potential victims with a ‘false sense of security if a perpetrator’s name does not appear in the register’, that the ‘onus remains on the victim to keep herself safe’, that such schemes come at a high cost, and there is limited information available about their effectiveness.7

(2016) 41(4) AltLJ 230

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The first case addressing Female Genital Mutilation in Australia

Juliet Brough Rogers
Article

Where is the harm?

What is the difference between circumcision, nicking, mutilating or touching the genitals of a child? Does it matter if that child is a girl or a boy? Does it matter if the person performing the procedure is a man or a woman? A doctor or a midwife? A parent or a friend? These are the questions that underpin any consideration that the courts must undertake when they apply the laws against what is termed, in the laws of all western countries, ‘Female Genital Mutilation’. The defining of an act as a ‘mutilation’ is not clear and it is loaded with politics and prejudice. These prejudices relate to the gender, the skin colour and the religion of the person. Judges and juries should not, of course, in Australia today employ such prejudices, but when it comes to the issue of what has been termed ‘female genital mutilation’ many of the considerations that usually make judges and juries hesitate before they pass sentence, might not apply. And this was the situation in Sydney in 2015, in the first case of its kind in a superior court in Australia.1

Over four months in the latter parts of 2015 the New South Wales Supreme Court considered the question of whether two young girls had experienced ‘mutilation’ as prohibited by s 45 of the Crimes Act 1900 NSW. Following a guilty verdict and conviction, the court considered the sentence that should be applied to a local Imam, the mother and the midwife who performed a practice — although the nature of that practice is contested — on two young girls. That something had happened, that a procedure of some sort had occurred, and that the parents knew something happened was not in dispute. The Prosecution argued that a midwife had been employed to perform a ritual ‘excision’, that the mother had consented to this and that she was present during the act. The Imam associated with the family’s community was found to be an accessory after the fact. The defence argued that only a touch of the genitals had occurred and that no trauma to the skin — no incision in the flesh — had occurred. Therefore, what was specifically in dispute was whether what had happened involved any damage or any cutting at all, and whether, if any of this happened, could it be considered ‘mutilation’. 

(2016) 41(4) AltLJ 235

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Protecting children from harm in juvenile detention

Jodie O’Leary
Article

altlj-41-1-international-law-through-the-split-150In ABC’s Four Corners exposé on the abuse of children at the Don Dale detention centre, interviewee barrister John B Lawrence said: 

If I treated my children like that, the authorities would take my children from me quite properly so because I would be behaving cruelly to them.1

And, following the ABC’s 7:30 Report showing mistreatment at a Queensland Youth Detention Centre,2 solicitor Debbie Kilroy tweeted about the ‘Child abuse by State’.3 

When a parent harms their child, a complaint can be made and the State has the power to remove that child from the parent’s care. For example, in the Northern Territory (‘NT’) a child is considered in need of care and protection if, among other things, a parent has caused harm to the child. Harm is any significant detrimental effect to the child’s ‘physical, psychological or emotional wellbeing [or development]’.4 

When State agents or institutions harm children the situation is less clear. It is not that systems for monitoring, complaints and reporting in relation to detained children are absent. Rather, as Cuneen states, ‘Australia has a relatively comprehensive complaints-based system for children and young people in detention’.5

(2016) 41(4) AltLJ 239

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Minority rights advocacy for incarcerated Indigenous Australians

Emma Henderson and Nicole Shackleton
Article

altlj-41-1-harm-in-juvenile-detention-150The impact of Article 27 of the ICCPR

Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’)1 establishes the fundamental human right of persons belonging to minority groups, such as the Indigenous peoples of Australia, to enjoy their own culture, including the right to use their own language/s, in community with other members of their group. As such, Article 27 protects both individuals and the specific ethnic or linguistic communities within which these individuals are based. In this article we consider the possibilities inherent in utilising Article 27 in legal advocacy on behalf of Indigenous Australians who have been incarcerated far away from their traditional lands and language groups and who have thus been deprived of their rights to enjoy their own culture and language. We will first consider the underlying objectives of the ICCPR and the function of the United Nations Human Rights Committee (‘UNHRC’) in dealing with violations of the rights set out within it. We then consider Article 27 in detail, and explore why this Article is of potential relevance in the context of the incarceration of Indigenous Australians, focusing specifically on the role of language and the loss of connection to culture via removal from Community and Country2 — two related rights specifically protected by Article 27. We conclude by arguing that the Complaints mechanism provided by the Optional Protocol is a useful, but still under-utlised, tool when advocating for the rights of Indigenous prisoners in Australia. 

(2016) 41(4) AltLJ 244

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