Special Episode: Rosemary Hunter Presentation Part 2

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In this special episode of the Scarlet Letter, we present Part 2 of a seminar by Professor Rosemary Hunter of Queen Mary University in London.

Professor Hunter discusses the Feminist Judgements Project and her research on how feminist ideology impacts the judicial process.

Check out the latest episode of our podcast, the Scarlet Letter.

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The part-time illusion for lawyers with caring responsibilities when applying for work in the Australian Public Service: My View

By Rachel Morrison-Dayan

mother and kids

Photo Credit: How Will They Make it in the Big City by Russ Siedel, Creative Commons

My pet hate is the claim made by the Australian Public Service (APS) to provide fair recruitment procedures and flexible working arrangements. It’s easy to be misled by this claim. I wonder whether this is the case for female lawyers, and indeed other professionals, with care responsibilities seeking to be recruited on a part-time basis.

When applying for a new legal position, one may turn to the APS as a sympathiser that understands how carers struggle to commit to a 37.5 hour work week because they are providing the unpaid social good of care to another person. Some APS advertisements for part-time and full-time legal workers may appear to promise such flexibility:

  • ‘Candidates interested in full time and part time opportunities are encouraged to apply.’
  • ‘We are a flexible employer and are open to discussing employment arrangements that might suit you best at this time.’
  • ‘As an employer, we aim to be a diverse and inclusive workforce, and help our employees achieve a sense of balance between work life and personal life.’

Let’s not jump for joy too soon. For the question is, shiny advertisements aside, how many APS employers actually go on to grant part-time work arrangements to newly recruited lawyers who are mothers of a young child, carers of a disabled adult or an aged parent? My inner conspiracy theorist may be lurching forward as I say this but I hazard a guess whether many applicants are shafted from the recruitment process upon uttering the fatal words ‘part-time requested’.

I must confess, my thoughts linger as to why my own application with a public statutory authority (which noted my availability for part-time hours only) did not proceed to interview stage.

I was disappointed to discover that the Fair Work Act 2009 (Cth) (s 65) makes it clear that the legal right to request flexible working arrangements is only granted to current employees who have accumulated 12 months of service. What is more surprising is that this 12 months requisite does not seem to be quite in tune with the Sex Discrimination Act 1984 (Cth) (SDA).

The SDA (s 14) forbids discrimination on the basis of family (caring) responsibilities in determining who should be offered employment and the terms and conditions of employment that the employer affords the employee. Unfortunately, it is impossible to determine whether the SDA has been complied with because recruitment files are confidential.

The Australian Public Service Commission (APSC) does not allow non-employee applicants to challenge the recruitment process. Where is the ethical conduct and transparency in the area of APS recruitment, or is it a case of discrimination behind closed doors?

In my view, while tougher legislation is needed, at a minimum to ensure its compliance with the SDA, the APSC needs to create (and enforce) policies and procedures to ensure that female lawyers with caring responsibilities are recruited into the APS on a part-time basis. Procedures must also be developed which allow job applicants to raise allegations of discrimination and be met with an adequate response.

Perhaps the issue of discrimination of female lawyers and other professional women and also male carers with family responsibilities in the APS is a matter which the Australian Human Rights Commission would like to take an interest in investigating—sooner rather than later I hope.

Rachel is currently studying for a MPhil in Law (Migration) with Monash University. In 2016 she was awarded the Fragomen Prize for first in her year in the Masters of Law in Migration Law with ANU. She previously worked for a federal government department in Canberra, in its various forms, after legal experience abroad and acquiring a foreign legal qualification. Rachel likes to write creatively in her spare time and has been published in a number of magazines. Originally from Sydney and Newcastle in NSW, Rachel now lives in Melbourne with her two young children and kitten.

Why there should be no room in the law for celebrants to discriminate on same-sex marriage

This article was first published on 16 November 2017 in The Conversation. You can hear an interview with Becky on this issue here and here.

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Celebrants should not be free to discriminate against couples who ask them to perform a marriage ceremony.  Source: CityofStPete, Creative Commons

The process of legislating for marriage equality is underway. Marriage celebrants are looking forward to Australia’s busiest-ever wedding season. However, with the proposed laws now on the table, not all marriages will be equal.

The private member’s bill sponsored by Liberal Dean Smith is being debated today in the Senate. Attorney-General George Brandis has said he wants to amend the bill to extend religious protections to civil celebrants.

If it goes through, the amendment would permit civil celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs (as another marriage amendment bill did earlier this year).

Permitting non-religious, civil marriage celebrants to discriminate is a bad idea. This goes far beyond protecting religious freedom.

My research into Australia’s marriage laws and civil marriage celebrants leads me to believe that Brandis’ proposed changes will undermine Australia’s flourishing civil marriage system by sanctioning discrimination against LGTBIQ clients. They will weaken marriage equality and will permit humiliating, unnecessary discrimination.

Providing the right to refuse to solemnise marriages to civil marriage celebrants undermines the aims and nature of Australia’s world-leading civil marriage celebrant program. It also compromises Australia’s long-established pluralistic system of marriage, as inherited from England.

Unique weddings and quirky celebrants: Australia’s contribution to the world

To understand the marriage equality law, it is helpful to know a little about the history of marriage in Australia.

Until 1973, when Australia’s world-first civil celebrant program was created, most civil wedding ceremonies were dry, brief and formal procedures conducted by state officials in registry offices.


Read more: As Australians say ‘yes’ to marriage equality, the legal stoush over human rights takes centre stage


The civil celebrancy program was initially set up by the Whitlam-era attorney-general, Lionel Murphy. It went under the publicity radar, unlike the no-fault divorce reforms debated and passed by the federal parliament at the same time.

According to one of Australia’s first civil celebrants, Dally Messenger, the civil celebrant program allowed for a civil alternative to religious marriage ceremonies that was dignified. Marrying couples could choose a ceremony at a place with symbols, dress and a celebrant consistent with their beliefs.

Murphy initially appointed just a small group of civil marriage celebrants in 1973 and 1974. Today, there are around 9,000 civil marriage celebrants registered in Australia. The civil celebrancy program, alongside the secularisation of Australian society, has made civil marriage ceremonies attractive and accessible to brides and grooms.

In other words, before Elvis’ Little Wedding Chapel in Vegas, we had Australia.

It is easy to find celebrants across Australia advertising services for garden weddings, weddings at family homes, beach weddings, skydiving weddings, underwater weddings, helicopter weddings and almost nude weddings (the celebrant said their nudity showed “there was nothing you wouldn’t do to be together”).

Allowing civil marriage celebrants to refuse to conduct a marriage ceremony because of their conscientious or religious beliefs against the marriage of partners of the same sex would undermine a key aim of the civil celebrancy program – to allow for a non-humiliating alternative to religious marriage ceremonies.

It is degrading for anyone to be told that they will not be able to be married by a celebrant because of the celebrant’s personal beliefs about them. The law should not authorise this humiliation.

Religious or civil wedding? The value of choice

The proposed exemption for civil marriage celebrants also undermines the long tradition of a pluralistic system of marriage law in Australia.

Since colonial times, Australians have been able to choose a religious ceremony or a non-religious civil ceremony. Both will be validly recognised as a marriage under law.

This system was inherited from England, where both religious (Church of England, Jewish and Quaker marriages) and civil marriages have been recognised since 1836.

Today in Australia, religious marriages must be conducted by law in accordance with the rites and practices of a broad range of religions. Civil marriages must be performed in accordance with the Marriage Act, and are far more heavily regulated by law than religious marriages.


Read more: The marriage equality survey is won, but the battle against discrimination continues


Most Australians choose to have a non-religious wedding. For nearly two decades, civil marriage has been overwhelmingly the most popular way to be married in Australia. In 2015, almost 75% of all marriages were performed by a civil celebrant rather than a minister of religion.

Over the last half of the 20th century, there was a major shift towards civil weddings. In 1959, just 11.4% of marriages were civil marriages. Civil marriages have outnumbered religious marriages in Australia since 1999.

Providing civil marriage celebrants with the right to refuse to marry a couple based upon their sexuality or the religious beliefs of the celebrant brings an element of religiosity to civil marriage. It reverses the historical separation of civil and religious marriage in England and Australia that has been in place since 1836.

The exemption will limit the ability of Australians to opt into a wedding that is not governed by religious values, defying the trend towards civil marriage.

Discrimination on the basis of sexuality or gender has no place in contemporary Australian law and society. If we are to achieve true marriage equality, then prejudice cannot be permitted in the delivery of secular wedding services. Our anti-discrimination laws exist to ensure equal treatment of all Australians, regardless of personal attributes.

Rosemary Hunter on the Scarlet Letter

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We have a new episode of the Scarlet Letter out, and it’s a great one. A couple of weeks ago, the Feminist Legal Studies group put on our first official event – a seminar by Professor Rosemary Hunter of Queen Mary University in London.

In this special episode of the Scarlet Letter, we present Part 1 of the seminar, in which Professor Hunter discusses the Feminist Judgements Project and her research on the role of feminism in the judicial process.

Part 2 of Professor Hunter’s seminar will follow on 15 December.

Have a listen to Part 1 below, and don’t forget to subscribe to the Scarlet Letter so you never miss an episode:

http://directory.libsyn.com/episode/index/show/scarletletter/id/5943268

When it comes to redress for child sexual abuse, all victims should be equal

This piece was originally published in The Conversation on 1 November 2017.  An associated blog post regarding the evidence the authors presented to the Victorian Law Reform Commission can be found here.

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The redress scheme cannot be a truly ‘just response’ if it says some kinds of victims simply don’t count.  Photo Source: Torbak Hopper (Creative Commons)

 

Kate Seear, Monash University and Suzanne Fraser, Curtin University

The federal government last week announced details for its long-awaited redress scheme for victims of institutional child sex abuse. The proposed scheme is a response to recommendations from the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse.

Controversially, the government proposes to exclude from redress anyone convicted of sex offences, and those sentenced to prison terms of five years or more for crimes such as serious drug, homicide or fraud offences.

This proposal is profoundly flawed and a step backward. It is made at a time when institutions should be atoning for past wrongs without arbitrary exceptions.

Crimes compensation schemes across Australia

All Australian states and territories have victims of crime compensation schemes. They provide victims of certain crimes with modest compensation to cover their expenses, or payments to recognise wrongs perpetrated against them.

Although state and territory schemes are typically funded by the state, the Commonwealth scheme anticipates that “responsible entities” – such as churches – will pay.

All schemes include criteria detailing who is eligible for support and who is not. People who “collude” with the perpetrator to rort the scheme are excluded. Victoria’s scheme contains an additional, broad provision requiring its tribunal to consider whether victims’ “character, behaviour or attitude”, past or present, should exclude them. The idea of excluding certain kinds of victims from support is is thus not unique.

However, all exclusion criteria warrant scrutiny, as they raise questions about victimhood, the selective recognition of harm, and social and community responsibility.

The Commonwealth proposal is especially in need of scrutiny, because of its historic significance and symbolic role, and also because it involves more specific criteria for excluding victims than other schemes.

The problem with saying only some victims are worthy of sympathy

We have studied how the Victorian law is interpreted and applied. The Victorian provision differs from the proposed Commonwealth one, but what we found offers clues about the significance of the Commonwealth exclusions.

Victoria’s “character” test allows highly partial moral and political judgements about who may be deemed “worthy” of public sympathy and support. For example, people with a history of illicit drug use or addiction can be excluded on the basis that they have a criminal history.

On occasion, victims with a drug-using history do receive compensation, but this can depend on whether tribunal members interpret the crime they have experienced as an explanation or “excuse” for their drug use or addiction. Here, being a victim of child sexual abuse or family violence is considered relevant.

While an experience of crime might lead to drug use for some, this is not the case for others. The nature of addiction is heavily contested, as is the relationship between drug use and past suffering or trauma.

So, there are practical and ethical problems associated with making decisions in legal contexts about why someone might have begun consuming illicit drugs or developed drug problems, and whether that should exclude them from compensation.

Notably, these evaluations can disproportionately affect women, since women are more often victims of family violence, sexual assault and sexual abuse. Such scrutiny may also retraumatise victims and compound, rather than alleviate, their suffering.

As it happens, the Victorian Law Reform Commission is currently undertaking a review of the Victorian Victims of Crime Assistance Act. We recently told the commission that the existing approach is flawed.

Although it might be politically popular – and less expensive – to separate applicants into the categories of “deserving” and “undeserving” victims, it is morally wrong to do so.

We acknowledge that some taxpayers may not tolerate money being given to people with criminal records. Why, they might ask, compensate criminals for wrongs done to them, when they themselves don’t respect the law?

At least part of the answer is that as a society we must acknowledge the seriousness of the impact on individuals of the kinds of crimes sometimes before the Victorian tribunal. The same holds for the royal commission.

In introducing the bill to parliament, Social Services Minister Christian Porter described it as a “just response”:

Children placed in the trust of our society’s institutions were some of the most vulnerable members in our community and the fact that must be confronted is that many children were sexually abused by the very people charged with their care and protection. No child should ever experience what we now know occurred. That is why it is time for all institutions and all governments to take responsibility for what has happened.

This statement acknowledges that children experienced serious harms in contexts facilitated and overseen by the nation. It insists that the community must accept and respond constructively to this knowledge. Taking a careful and informed approach to the meaning of criminal acts such as illicit drug consumption is part of this obligation.

Importantly, those excluded by the Commonwealth scheme will have been convicted and punished in the past. Should someone who suffered harms as a child forfeit the right to have those wrongs acknowledged? Would this amount to punishing them again?

Justice should apply to everyone

We would argue that a person’s right to justice, to the extent that this might be available through compensatory schemes, should not be tied to past activities.

As justice theorist Sara Ahmed argues we must:

… challenge the view that justice is about […] being the right kind of subject. Justice is not about ‘good character’. Not only does this model work to conceal the power relations at stake in defining what is good-in-itself, but it also works to individuate, personalise and privatise the social relation of (in)justice.

As the royal commission has exposed beyond question, institutional responses to child sexual abuse have often been profoundly irresponsible, and potentially criminal in themselves.

The ConversationThe redress scheme must send the strongest possible message to those responsible. It cannot be a truly “just response” if it says some kinds of victims simply don’t count.

Kate Seear, Academic Director of Springvale Monash Legal Service & Senior Lecturer in Law, Monash University and Suzanne Fraser, Professor, National Drug Research Institute, Curtin University

This article was originally published on The Conversation. Read the original article.

 

Refugee Women on Nauru

This blog post contains references to sexual and physical assault that may be distressing to some readers.

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A protester on Nauru holds up a placard complaining about the treatment of women and children asylum seekers.
Refugee Rights Action Network: Victoria Martin-IversonSource: ABCABC

s99, a name given by the Federal Court to a young African refugee, was unconscious and suffering an epileptic seizure when she was raped.  She had been transferred to Nauru by the Australian government after fleeing persecution in her home country. As with all refugees in Nauru she had been held in a detention centre paid for by the Australian government, and had subsequently been ‘released’ into the Nauruan community. It was then that she was raped, as a result of which she became pregnant.

There was strong medical evidence that s99 needed an abortion a fact that the Australian government accepted.  However, abortion is not an option on Nauru because it is both unsafe and illegal there. s99 had been a victim of female genital mutilation, this combined with her epilepsy and poor mental health, meant that she required specialised treatment that could be provided to her in Australia. Yet the Australian government, reluctant to bring her to Australia, transferred her to PNG where abortion was both illegal and unsafe. The Federal court ultimately decided that the Minister for Immigration had a duty of care to s99 to provide her with a safe and lawful abortion and ordered her transfer to Australia.

Tragically, s99’s story of physical and sexual abuse and lack of medical assistance is not an anomaly on the tiny island of Nauru which has been caught up in Australia’s border protection policies.

Only 48 women remain detained in the immigration detention facility in Nauru. Hundreds of women, however, including both single women and women with family groups live in the Nauruan community- their presence made possible by funding from the Australian government. These women have been found to be refugees and have been ‘resettled’ on the island. They are not permitted to leave the island except to return to their home countries, which as refugees, is not a viable option.

Policy of Deterrence at Work

These women are the victims of Australia’s policy of deterrence. Australia has attempted to stop refugees and asylum seekers from coming to our shores by ‘deterring’ them from seeking to enter our territory. As Greg Lake, one of the architects of Australia’s offshore processing regime has admitted, the policy of ‘deterrence’ is little more than ‘making conditions for those people worse than if they’d never come to Australia… In practice, that meant constructing an environment of hopelessness.’ That is, the suffering of refugees is not an accidental by‑product of Australia’s approach to those who seek its protection but a systematic and methodical tactic.

The evidence of the suffering of asylum seekers and refugees under Australia’s policies is irrefutable. Human Rights Watch reports that:

refugees and asylum seekers on Nauru routinely face neglect by health workers and other service providers who have been hired by the Australian government, as well as frequent unpunished assaults by local Nauruans. They also endure unnecessary delays and at times denial of medical care, even for life-threatening conditions. Many have dire mental health problems and suffer overwhelming despair – self-harm and suicide attempts are frequent. All refugees and asylum seekers face prolonged uncertainty about their future.

Shockingly every single refugee or asylum seeker interviewed by Human Rights Watch reported ‘intimidation, harassment, or violence directed at them or family members’ on Nauru. It is not difficult to see why Roger Cohen of the New York Times has stated that Australia’s offshore processing regime ‘follows textbook rules for the administering of cruelty.’

In the words of Mina Taherkhani,, a 36 year old refugee trapped on Nauru: ‘The Australian government utilises all of their tools to make us soulless and numb. They have normalised our deprivation, fatality and death.’

The Vulnerable Position of Women and Girls on Nauru

The abuse, self-harm and neglect of asylum seekers in Nauru violates the human rights of all refugees and asylum seekers. However, women and girls are vulnerable to suffering some of the most pronounced negative impacts of Australia’s policy of transferring refugees to offshore centres for detention, processing and even resettlement.

Women and girls are highly vulnerable to gendered forms of violence on Nauru such as groping, touching, explicit threats, and rape.  Lack of secure housing is a significant issue for women in Nauru. Women also do not feel safe leaving their accommodation alone. There is strong evidence that the Nauran police have failed to protect women from sexual and physical abuse or to investigate allegations from victims of rape.

In addition, women are more likely to suffer adverse health problems as a result of ‘catastrophic’ health facilities. Pregnant women, in particular, face greater risks to their well-being because of poor conditions.

The Nauru files, leaked incident reports written by staff in Australia’s detention centre on Nauru between 2013 and 2015 revealed hundreds of allegations, including 28 of sexual harassment, assault or abuse and 23 of assault or battery. They also documented how women held in Nauru attempted or threatened suicide 70 times, and committed or attempted self-harm 144 times.

A report commissioned by the Australian government, by Mr Phillip Moss AM also found it was likely that guards working at the detention centre at Nauru had sexually exploited refugees and asylum seekers in exchange for access to shower facilities; that women had been raped; and that adults and children had been physically and sexually assaulted.

The impact of detention on children can also have a devastating effect on refugees and asylum seekers including mothers. As UNHCR explains:

the absence of family or community support and the challenging physical
environment place young children (zero to five years) at significant risk of
compromised development from emotional, cognitive and physical
perspectives. In this context, the intolerable situation for asylum-seekers
and refugees, as well as the breakdown of normal family structures and
intra-familial relationships may place women and children at heightened
risk. Living in these conditions, as well as a physically hostile environment
in poorly ventilated tents, is especially traumatizing to children, in the
context of mandatory and open-ended detention that will exacerbate or
precipitate mental and physical illness into the future for them.

Fighting the Policy 

Australia’s policy of ‘deterrence’ which includes the transfer of women asylum seekers and refugees to Nauru would not continue if it did not enjoy the support of many Australian people or if the Australian government did not think they could get away with human rights abuses. This gives us, Australians, more power than we are sometimes led to believe or are willing to admit.

It is important to listen to the voices of refugees and asylum seekers themselves in any attempt to join in their struggle for human rights and dignity. As Mina Taherkhani, further explains,  ‘If Australia would like to support [women on Nauru], please make an opportunity for us to talk to the community.’

Hearing the voices of refugees and asylum seekers is difficult, however, because of a concerted effort by the Australian government to keep refugees far from the reach of the media, scholars and civil society.  Nevertheless, we must try to ensure those deliberately silenced have a voice and one way of doing this is to follow refugees and asylum seekers in our offshore centres on social media.

The policy of offshore processing resumed in 2012 and has continued for almost 5 years. For this reason much of the Australian media and many Australians no longer see the suffering of those in our offshore camps worthy of attention. However, for the men, women and children suffering through our regime the pain is no less real today than it was when they were first transferred to Australia’s detention islands. For this reason, our constant attention and our defiance will ensure that the refugees and asylum seekers sent to our offshore centres are not forgotten.

As outlined in another blog,  we also need to talk to our friends, our family and our communities about what is going on. We must be public in our concern. We need to use social media and all avenues available to us to draw attention to the plight of asylum seekers and refugees caught in Australia’s border protection policies.

It has been reported that the United States begun resettling a small group of refugees from Nauru and Manus Island last week. It should be noted that this resettlement deal is not the answer to ending the current crisis on Manus Island or Nauru. The deal is uncertain with no guarantees as to who will be resettled and when they will be resettled. The US has never claimed to be willing to take all refugees and asylum seekers transferred by Australia to its offshore centres. Whilst there is hope that some refugees will be able to begin a new life in the United States, the only way of ensuring that Australia abides by its international obligations and stops the cruel, inhumane and degrading treatment of asylum seekers and refugees for whom it has responsibility, is to close the centres on Nauru and Manus and resettle all refugees in Australia.

This is not impossible to achieve. Successful campaigns such as the #letthemstay campaign shows what is possible and that there is hope. The #letthemstay campaign was built to stop the Australian government from sending back to Nauru a group of vulnerable women and babies who had been transferred to Australia for medical attention. It led to many families being permitted to remain in Australia. The campaign involved numerous rallies in support of refugees and asylum seekers around the country, the willingness of churches to engage in civil disobedience, and doctors refusing to release vulnerable women and children from hospital for fear of their transfer to Nauru.  A recent attempt to cut income support and government housing for this same group of refugees and asylum seekers was met with further political action and resulted in more than 100 people receiving direct support from the Victorian government.

The success of the #letthemstay campaign has not been enough because the Australian government is now attempting to circumvent the gains made in the campaign by refusing to give refugees and asylum seekers in desperate need of medical attention access to Australian territory. Despite the Federal Court’s decision in s99, it was recently reported that refugee women transferred to Nauru who were seeking to terminate pregnancies and others in need of medical transfer were being refused medical care in Australia for fear that they would remain in Australia. This is not to say, however, that the #letthemstay campaign did not vastly improve the lives of the women and children at the heart of the struggle. The campaign #letthemstay shows that government policy can be changed but not in a single campaign.  The success was only a step in a much broader movement.

What is happening in our offshore centres is not inevitable. It is an expensive and deliberate policy that we can and we must change.