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

 

“WOMEN’S PRISONS ARE FILLED WITH STORIES OF PEOPLE LIKE ME … THAT HAVE HAD TRAUMA, ABUSE, REALLY VIOLENT RELATIONSHIPS … IT’S ACTUALLY VERY SAD TO THINK THAT WE END UP IN PRISON AFTER SUCH HECTIC PASTS.” – BEKKI [1]

AND WE CALL THIS JUSTICE?

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’.

A CONSTELLATION OF FACTORS RESULT IN THE WRONG PEOPLE BEING CRIMINALISED

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.

THE EXAMPLE OF WOMEN IN PRISON

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.

HOW TO APPROACH SUCH AN OVERWHELMING PROBLEM?

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?

‘RETHINKING’ JUSTICE VIA THE HEALTH JUSTICE PARTNERSHIP MODEL

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.

IS THE HEALTH JUSTICE PARTNERSHIP MODEL THE NEW CURE-ALL TO INJUSTICE?

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.

Notes

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