Brunei wants to punish gay sex with death by stoning – can boycotts stop it?

Paula Gerber, Monash University

This article was originally publish in The Conversation on 16 April 2019

The sultan of Brunei has been on the throne for 52 years, making him the second-longest reigning monarch in the world, after Queen Elizabeth II.

In Brunei – a rather traditional, deeply Muslim Southeast Asian country – the sultan is known for leading a decadent life.

Vanity Fair once dubbed Sultan Hassanal Bolkiah and his brother, Prince Jefri Bolkiah, “constant companions in hedonism.” They spend lavishly on luxury cars, yachts and real estate, and according to the magazine, “allegedly sent emissaries to comb the globe for the sexiest women they could find in order to create a harem the likes of which the world had never known.”

Now, Brunei’s sultan appears to have found religion.

He has implemented a harsh interpretation of Sharia – Islamic law – in his country, taking aim at LGBT people, women and even children with some of the world’s harshest penalties for homosexual conduct.

Under Brunei’s new laws, gay sex and adultery can result in death by stoning, and having an abortion is punishable by public flogging. Dressing in clothing associated with a different sex may incur a fine and imprisonment up to three months. Younger children can be whipped for these offenses.

Diversion from economic woes

These laws represent serious breaches of international human rights law, my field of academic expertise.

Thirty-six countries – including the United States, United Kingdom, Argentina and Australia – recently issued a joint statement expressing “profound dismay” at Brunei’s penal code, which the United Nations has deemed “cruel and unusual.”

Why is Brunei’s sultan suddenly so keen to enforce Sharia across this island nation of 430,000?

One of the main reasons may be plunging global oil prices. For the first time, the oil-rich nation of Brunei is grappling with economic crisis.

Other countries have similarly whipped up hatred against LGBT peopleto distract the public’s attention from economic crisis or corruption allegations.

The sultan may also be seeking to rehabilitate his reputation as a “party boy.”

“This is obviously not coming from a place of religious devotion, since the sultan himself is in violation of every single rule of Sharia you could possibly imagine,” religious scholar Reza Aslan told the New York Post in 2014, when the sultan first flagged his intention to impose strict Islamic law in Brunei.

Perhaps the Sultan thinks that implementing Sharia will enable him to leave a religious legacy that outweighs his decades of very public excess and indulgence.

Do boycotts work?

As a way of trying to get the Sultan to change his mind about imposing these harsh penalties within Brunei, many celebrities and gay rights advocates are calling for boycotts of the sultan’s international hotels and of Royal Brunei Airlines.

Ellen DeGeneres


Tomorrow, the country of will start stoning gay people to death. We need to do something now. Please boycott these hotels owned by the Sultan of Brunei. Raise your voices now. Spread the word. Rise up.

But evidence suggests that boycotts are not the most effective way to influence foreign governments.

For one, they can cause the offending government to harden its position to show it will not give in to foreign pressure. That can make it harder to work collaboratively with leaders of that country to actually improve the situation.

That’s what happened in Uganda in 2014, when President Yoweri Museveni introduced some of the word’s toughest anti-gay laws.

“I advise friends from the West not to make this an issue, because if they make it an issue the more they will lose,” he said. “Outsiders cannot dictate to us. This is our country.”

This risk is compounded by the evident double standard of an international boycott of Brunei and the sultan’s businesses. Other countries that impose the death penalty for same-sex sexual conduct – including Afghanistan, Yemen, Pakistan, Iran and Saudi Arabia – are not subjected to similar global condemnation.

Who can stop the sultan?

The United Nations may stand a better chance of curbing Brunei’s behavior.

Brunei’s human rights record will be reviewed by the U.N.‘s Human Rights Council next month, as part of a regular assessment called the Universal Periodic Review – a relatively new process described by the International Bar Association as “the most progressive arena for the protection of the LGBTI community internationally.”

Though the Universal Periodic Review has no power to enforce its recommendations, it has shown some success in advancing human rights in U.N. member countries. Its method is to foster dialogue with and between governments and civil society, create a plan for improving rights and closely monitoring progress.

Brunei’s allies and neighbors are also well placed to put pressure on the sultan.

Research has found that if a state is criticized by one of its strategic partners, it is more likely to accept that criticism than if it comes from a state with which it has fewer ties.

Brunei is a member of the Commonwealth of Nations, a voluntary association of 53 sovereign states, most of them former British colonies. Its biannual Heads of Government Meeting, set to take place in Rwanda next year, is a potential forum for meaningful dialogue about the state of LGBTQ rights across the Commonwealth of Nations, since Brunei is one of 35 Commonwealth countries that still criminalize consensual same-sex sexual conduct.

If negotiations with Brunei are unsuccessful, the Commonwealth of Nations can take the powerful step of suspending its membership. That would prevent Brunei from participating in group meetings and events – including the popular Commonwealth Games, which have been described as “sport with a social conscience.”

This step was previously taken in response to grave human rights violations committed by Fiji, Nigeria, Pakistan and Zimbabwe.

Over 100 LGBTQ and human rights groups from Southeast Asia have also called on the Association of South East Asian Nations – ASEAN, a regional intergovernmental organization – to take a hard line against member state Brunei, saying its new laws “legitimize violence.”

But ASEAN’s non-binding 2012 declaration of human rights – which does not explicitly prohibit discrimination on the basis of sexual orientation and gender identity and contains imprecise language that significantly dilutes its power – seems unlikely to demand an institutional response.

Does the sultan mean it?

There is concern that Brunei’s imposition of hard-line Sharia will embolden its Muslim majority neighbors, Malaysia and Indonesia, to follow suit.

Malaysia already applies Islamic law in some states. Last September, two women found guilty of attempting to have sex were sentenced to be, and were, caned.

In nearby Indonesia, gay sex is legal in all but one province, but homophobia and transphobia are rising nationwide, and recent talk of criminalizing gay sex has LGBTQ Indonesians worried.

Brunei, it’s important to note, has not actually used the death penalty since 1957.

An optimist could conclude that the new laws are mostly symbolic – designed to beef up the sultan’s Islamic credentials and garner favor with other Muslim countries to boost trade and tourism.

That interpretation, however, is unlikely to diminish the fear of the vulnerable minorities targeted by Brunei’s Sharia laws.

Paula Gerber, Professor in the Faculty of Law at Monash University

This article is republished from The Conversation. Read the original article.


Transgender Women in Prisons: Where the Real Risks Lie

Blog post by Amanda Selvarajah, Monash University Law Student

In early March this year, the UK established their first ‘transgender unit’ in a women’s prison, that would separate three transgender inmates from the other women. The Ministry of Justice said the move was ‘not part of a wider policy for transgender offenders’. However, the move does run the risk of perpetuating the harmful stereotype that transgender women are a threat to others and stifling efforts to rightly integrate transgender women into women’s prisons.

The Alleged “Risks” of Trans Women

The UK’s transgender wing decision came in the wake of a transgender prisoner who sexually assaulted other inmates in a women’s prison. The wing was therefore described as a decision to “manage prisoner safety” and the ‘“unique risks” posed by three transgender prisoners residing in the prison.

The “unique risks” these prisoners posed is unclear although it is perhaps worth noting that none were involved in the crime that triggered the decision, which took place in a different prison. That being said, the decision to relocate them was reportedly based ‘on a range of robust assessments, including the potential risk of harm to other women, by a transgender case board’.

However, the success of this unit will ultimately be decided entirely by ‘how effectively the prison protected its biologically female inmates’. In this way, the rights and wellbeing of these preemptively segregated transgender women seem to be largely inconsequential.

While there should absolutely have been a response to the sexual assaults that triggered the transgender unit, the response should probably have focused more on the assaults and the circumstances that allowed it to happen than the gender identity of the perpetrator. Especially since rape culture in both men and women’s prisons have been rampant, under-researched and largely left unchecked for years.

Therefore, the concern is that this unit and process of segregation is more a manifestation of the harmful narrative that transgender women are inherently dangerous to other women than a legitimate safety measure.

Policies like these risk setting back the push for integrating transgender women into women’s prisons around the world and in Australia — a move that beyond meeting basic human rights obligations could actually make the difference between life or death.

The Risks Facing Transgender Prisoners

In the UK, a transgender woman killed herself in a male prison in 2016 ‘following complaints of bullying by prison staff’, in 2015 two transgender inmates also ‘died of apparent suicide in a male prison’ and in the last two years ‘[n]early a fifth of women who died in prison … were transgender’.

As for Australia, a transgender woman in a male prison described her life as “hell on earth” with repeated sexual assaults and deprivation from necessary hormone therapies. The reality is that transgender women are actually more likely than most to be victims of sexual assault in the prison system with transgender women reporting ‘daily experiences of sexual coercion and psychological distress’. Other reported abuse include medical treatment by staff without the necessary medical expertise, ‘strip searches and urinalysis procedures in front of other inmates, or by officers of the birth sex of the inmate’ and ‘verbal harassment by staff’.

Australia’s Laws on the Issue

In Australia, anti-discrimination legislation makes it illegal to discriminate against anyone on the basis of their transgender identity. However, policies for assigning transgender offenders to prisons aligned to their gender identity varies.

NSW is seen to have the most progressive policies, where staff are ‘required to address and manage trans people in accordance with their self-identified gender, and self-identification is the only criterion for identification as transgender’. However, hormone therapy is limited by whether the individual began therapy before incarceration. In Queensland, transgender women are usually placed in men’s prisons and like in NSW ‘are unable to access hormone [therapy] and start transition unless they had begun’ it before incarceration. Transgender women also tend to be placed in men’s prisons in Western Australia where their policies are worryingly underdeveloped.

Just last month, a transgender woman in Perth spent ‘over 300 days in custody in a male prison’ prior to her sentencing where she was ‘kept in solitary confinement, denied access to hormone replacement therapy (HRT), not provided with appropriate clothing, and searched by male guards’ and upon ‘return to a male prison, she will continue to be kept isolated in crisis care – something that could have extreme psychological consequences’.

Moving Forward

Ultimately, the prison system is ripe for reform across a range of feminist issues, particularly for transgender women. However, as new policies on the issue are explored and introduced, I will be looking out for what I consider to be the real risk that might arise — the introduction of policies that risk blurring ‘the line between prisoner safety and transphobic discrimination’.

Amanda Selvarajah, Student in the Faculty of Law at Monash University 

Episode 24: Lucy Nadj

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In this episode of the Scarlet Letter, I chat with law/science student Lucy Nadj, who has been a volunteer with the Prison Legal Education and Assistance (PLEA) program for several years. Lucy explains the role of PLEA and some of the challenges faced in delivering community legal education in prison. 

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

High Court delivers landmark ruling validating abortion clinic ‘safe access zones’

Caroline Henckels, Monash University, Ronli Sifris, Monash University and Tania Penovic, Monash University 

This article was originally published in The Conversation on 12 April 2019

The High Court of Australia handed down a judgment on April 10 that upheld Tasmanian and Victorian laws that created “safe access zones” around abortion clinics. The court ruled the laws are constitutionally valid.

Photo: Human Rights Law Centre – Celebrating the achievement of the significant result

Safe access zones prevent anti-abortionists from targeting patients, staff and others within a specific radius of abortion clinics. They protect the privacy, safety and dignity of women accessing health care. Safe access zones now operate in all Australian jurisdictions, except South Australia and Western Australia.

The current case stemmed from two appeals to the Victorian and Tasmanian laws. The challenge to the Victorian law was brought by Kathleen Clubb, who approached a couple within the safe access zone and tried to hand them an anti-abortion leaflet. She was found guilty of engaging in communication about abortion reasonably likely to cause distress or anxiety within the safe access zone.

The challenge to the Tasmanian law was brought by John Preston, who was found guilty of engaging in a protest about abortion within the safe access zone by displaying anti-abortion placards, one of which depicted a foetus.

Clubb and Preston both argued that the law was invalid because it impermissibly burdened the freedom of communication on governmental and political matters that is implied in the constitution.

The High Court unanimously rejected both appeals

All judges agreed that the purpose of the laws – to protect women’s rights to health, safety, privacy and dignity when accessing abortion services – was a compelling objective that was compatible with the Constitution.

In relation to the Victorian law, the judges found that it had not been established in the Magistrates’ Court that Clubb’s actions were political in nature. Nevertheless, four of the seven justices held that any restriction on political communication in the Victorian law was constitutionally valid.

All judges agreed that Preston’s conduct was political communication, and found that the Tasmanian law was valid.

The judges unanimously affirmed the importance of the laws. Justice Nettle, for example, said that:

women seeking an abortion […] are entitled to do so safely, privately and with dignity, without haranguing or molestation.

Chief Justice Kiefel and Justices Bell and Keane delivered a joint judgment, which noted that the aim of safe access zone legislation was to protect the right of women to access abortion clinics, rather to punish those who interfere with women seeking abortions.

Restriction on political communication

The judges had differing opinions about how much the laws restricted political communication. Four judges (Chief Justice Kiefel and Justices Bell, Keane and Gordon) found that the burden was “slight”, “minimal” or “insubstantial”.

The law regulated only the time, place and manner of the conduct. People could engage in the same conduct at other times and places.

Although three judges (Justices Gageler, Nettle and Edelman) thought that the law’s impact on political communication was significant, these judges agreed that the importance of the law outweighed its impact on political communication.

Laws creating safe access zones are valid

Six of the seven High Court judges now use a technique called “proportionality analysis” to determine whether a law that limits political communication is valid.

Briefly, this approach requires judges to determine:

  • whether the law is rationally connected to its objective
  • whether there are any “obvious and compelling” alternative ways of drafting the law that restrict political communication to a lesser extent
  • whether the law adequately balances the competing interests at stake.

One factor that the judges considered was the size of the safe access zone, which both laws set at a 150 metre radius.

Justice Edelman, for example, decided that a smaller zone would not be as effective. Justice Edelman said it was not the court’s role to decide whether, for example, the zone should have a radius of 130 or 120 metres. Rather, this was a decision for the “parliament as advised by stakeholders, experts, and committees”.

Some of the judges observed that the Victorian law restricted political communication to a lesser extent than the Tasmanian law, in the sense that the conduct needed to be “reasonably likely to cause distress and anxiety”. But the judges decided this did not mean that the Tasmanian law was unconstitutional.

In this respect, the judgments recognise policy choices like these are for parliament to make, and not the courts.

The High Court has unanimously affirmed that safe access zones comply with the Constitution. The decision makes it clear that the freedom of political communication is not a license to infringe womens’ rights to access lawful medical services with safety, privacy and dignity.

The Court’s decision should reassure the South Australian and Western Australian governments that there is no constitutional impediment to enacting safe access zone legislation. We hope that 2019 will mark the end of the long history of harassment of women accessing abortion services.

Dr Caroline Henckels, Senior Lecturer in the Faculty of Law at Monash University and an Associate of the Castan Centre for Human Rights Law

Ronli Sifris, Senior Lecturer in the Faculty of Law at Monash University and Deputy Director of the Castan Centre for Human Rights Law

Tania Penovic, Senior Lecturer in the Faculty of Law at Monash University and Deputy Director of the Castan Centre for Human Rights Law

This article is republished from The Conversation. Read the original article.

Rethinking Justice: The Transformative Potential of Health-Justice Partnerships

Helen Forster, Good Shepherd Australia New Zealand

This article was originally published in The Power to Persuade on 28 March 2019

If we believe in a society that is just and equitable, and where the rule of law is both respected and effective in maintaining such a society, then our criminal justice system is failing us in achieving these aims. In today’s post, Helen Forster of Good Shepherd Australia New Zealand proposes basic principles for addressing shortcomings in how the criminal justice system interacts with women, and proposes that innovative health justice partnerships offer a promising corrective.

amor by odillion

Armor by Odilon Redon by Rawpixel Ltd CC BY 2.0




Four Corners recent episode ‘Criminalising Women’ investigates why there are more women in prison than ever before. Speaking to three women with direct experience of incarceration, the program provides personalised and compelling stories that are representative of many women in our prisons; “… I knew every day when I opened my eyes I would be wondering is today the day I am either going to die or I’m going to be arrested.”

The mainstream media is full of one tragic story after another – including incarceration for unpaid fines particularly amongst Indigenous women, intoxication, homelessness, and clinical diagnoses – illustrating that our prison populations are over-represented by the most disadvantaged members of our community.

Recent figures from Corrections Victoria show imprisonment rates are going up – especially for women, and even more so for Aboriginal and Torres Strait Islander women. Future trajectories suggest the rates of incarceration will continue to increase. Meanwhile, there is no evidence to suggest this is due to an overall increase in crime (see here and here).

The well-established societal drivers of ‘criminality’ (such as poverty, unemployment, mental health, and addiction) are now cross-hatching with more contemporary developments, such as legal changes to bail and punitive infringements systems, contributing to the number of people coming into contact with the criminal justice system and the rise in incarceration rates.

Furthermore, the criminal justice system is over-burdened and under-resourced. This results in lengthy delays, which can impact both emotionally and financially for the victim and the accused, diminished time for judges and magistrates to do their jobs, and increased workloads for court workers across the board.

Underpinning, or arguably informing, this state of affairs, is structural disadvantage and discrimination. Social injustices are variously experienced by women, non-white individuals, people from CALD backgrounds, members of the LGBTIQ community, and people with disability.

On examination of the current situation in Australia, it is not unreasonable to suggest that in order to be a just society we need to rethink how we ‘do justice’.


When structures of power and the resultant flawed systems intersect to punish disadvantaged and/or vulnerable people, we see the results as:

  1. some people coming to court who shouldn’t be there (which strengthens the case for prevention and diversion) and
  2. in the example of many women in prison, we are criminalising people who are themselves victims.

This constellation of factors is evidenced by the particular case of incarcerated women.


Many women are imprisoned due to relatively minor/non-violent offences. Surveys conducted by Corrections Victoria show “that female prisoners frequently report histories of family violence, high rates of housing instability and substance abuse that are often inter-related.” They also report that female prisoners experience mental health issues related to trauma, and experience very high incidences of abuse. Aboriginal and Torres Strait Islander women prisoners experience additional layers of entrenched disadvantage and intergenerational trauma. Added to these concerns, many incarcerated women are the primary carers of their children.

The offending profile and experiences of women who have spent time in prison demonstrate the gendered nature of incarceration – both at an individual and a structural level. It also supports a compelling argument for why many women should not be imprisoned and why alternatives should be considered.


Our criminal justice system is based upon an archaic set of assumptions and principles, operating from an adversarial model that is not designed to be easily understood or navigated by the lay person. Whether the criminal justice system is inherently flawed or merely not working, there is a need to rethink ways of ‘doing’ justice that will address current unmet needs and mitigate the ways in which particular groups of people are discriminated against (including from a systemic level).

Both immediate crises and longer-term priorities of the justice system must be addressed. That is, immediate support and resources, such as for trauma and addiction, combined with advocating for structural change is required.

Distilling current good practice, a checklist for rethinking justice might look something like this:

  • Apply a feminist gender lens to solution-seeking. This approach is effectively modelled by Women’s Legal Services. Their policy work across eliminating violence, promoting economic security and improving access to justice highlights the differential experiences of women. For example, their Small Claims, Large Battles report was informative to the development of the inaugural Women’s Economic Security Statement released by the Australian Government. From that statement measures to support women’s economic independence including providing Specialist Domestic Violence units and Health Justice Partnerships, and extending early release of superannuation for victims of domestic and family violence.
  • Consider and include the far-reaching issue of intersectionality – that is how race, LGBTIQ+ identity, experiences of disability, socioeconomic status and other overlapping identities impact individual experiences and inform structures of power. For example, taking an intersectional approach to family violence is critical to understand contextual factors and failed system responses for many victims.
  • Employ consultation, prioritise community-led initiatives and adopt human-centred approaches – people as the “problem holders” can identify the problem and corresponding issues. As Dr Margaret Hagan states, “be in service of your users: know who you are working for and make their needs and goals your lode star for decision making.” A tailored and site specific/appropriate approach recognises that just because something works in one place does not mean it will work somewhere else..
  • A history of colonialism permeates Australia as a whole and must be addressed in any ‘work’. The Maranguka Justice Reinvestment Project (an Aboriginal community partnership with Just Reinvest NSW) in Bourke for example, has had positive outcomes across the areas of domestic violence, juvenile crime and early childhood development. A key component of the project is an awareness of issues for Aboriginal and Torres Strait Islander people, instead of “policies set by governments in faraway Sydney and Canberra.”

Our current criminal justice system is not built to be so responsive to complex issues which sit behind criminality. How then could these principles be embedded in a meaningful way?


It is not possible to provide a panacea for all the problems outlined here – however, one example with the potential to play a part in change or impact is the Health Justice Partnership (HJP) model. Whilst HJPs are reasonably new in Australia, having emerged in 2012, the international evidence shows HJPs to be successful in alleviating individual financial and psychological distress as well as reducing the burden on health and legal systems. The features of HJPs can be summarised according to four elements: integration, early intervention, systemic change and person-centred (more details can be found in this report).

In essence, an HJP works by embedding legal professionals within a health setting – for example a community legal centre lawyer embedded at a hospital. The idea is for the legal and health services to work collaboratively to address the unmet needs of vulnerable and/or disadvantaged people. Evidence has shown that people with intersecting mental health and legal problems, for example, are unlikely to turn to legal services for solutions. Reasons for this may be due to lack of understanding there is a possible legal solution, fear of perceived cost, and barriers experienced from living with complex life events. Subsequently, vulnerable community members are more likely to make contact and discuss these issues with a health professional than a lawyer.

The HJP model provides a space where professionals from different fields of expertise can work together to best identify and then address problems. Ideally, this more wholistic approach has potential – for reaching those in need, providing tailored assistance in a more timely fashion (or at all), reducing criminal sanctioning, relieving some of the burden on an already strained court system, and improving the mental health and wellbeing of vulnerable individuals.

The multiple and complex needs of women in prison caused by social and structural impediments could be better served by HJP models to help and support women to resolve their complex legal issues rather than sending them to prison.

Building a fully effective HJP takes time and requires resources. No matter how meritorious or well-meaning an initiative, programs need to be devised with a clear program logic to support better outcomes, accompanied by best practice evaluation to assist with refining the model and demonstrate impact.

The Australian Government’s commitment to fund existing Health Justice Partnerships should extend funding to properly establish and evaluate programs and identify best practice in the space.


No. But if the aim is to aspire to a more civil and equitable society, with a fair and responsive criminal justice system, then exploring ideas such as the HJP model is a step in the right direction – one that is more agile and able to identify and address underlying issues.

Overall, the promise of a successful HJP is one example of how a model can operate alongside the pre-existing criminal justice system. Such a model may help stop people coming to court who shouldn’t be there and interrupt some of the injustice within our justice system.

This post is part of the Women’s Policy Action Tank initiative to analyse government policy using a gendered lens. View Women’s Policy Action Tank’s other policy analysis pieces here.


[1] From the transcript of Four Corners’ “Criminalising Women,” aired 25 February 2019.

Special Episode: Debra Parkes

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In this episode of the Scarlet Letter, Becky interviews Professor Debra Parkes, the Chair in Feminist Legal Studies at the Peter A. Allard School of Law, University of British Columbia. 

Professor Parkes’ scholarly work examines the challenges and possibilities of addressing societal injustices through rights claims, with a focus on the criminal justice, corrections, and workplace contexts. The lens she brings to this work is feminist, intersectional, and socio-legal. In this episode, Professors Parkes discusses her interests in the incarceration of women, the limits of prison reform, and the framing and adjudicating of prisoners’ rights claims.

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

Episode 19: Paula Gerber

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In this episode of the Scarlet Letter, I interview Professor Paula Gerber, one of the members of our Feminist Legal Studies Group. Professor Gerber discusses her experiences as a woman in the traditionally male-dominated field of construction law, as well as her current projects on increasing access to birth registration for indigenous and other communities, and Australia’s role in protecting the rights of LGBTIQ people in the Asia-Pacific region. 

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