Court of Conscience Issue 10 (spreads)

Giving Voice to Minority
Issue 10, 2016
Court of
Conscience

Court of Conscience
Giving Voice to Minority
Issue 10, 2016
Contents
Editorial
Angelina Yurlova
Unfitness to Stand Trial: The
Indefinite Detention of Persons
with Cognitive Disabilities in
Australia and the United Nations
Convention on the Rights of
Persons with Disabilities
Piers Gooding, Sarah Mercer,
Eileen Baldry and Anna
Arstein-Kerslake
Resisting Silence: Asylum Seekers
and Voices of Conscience
Linda Briskman
Minister Dutton’s Children:
Guardianship of Unaccompanied
Minors in Immigration Detention
Natasha Naidu
Justice Investment and
Community Intervention
Rob White
Please Give Us Answers’ Indigenous
Incarceration in Australia: Strategies
for Urgent Reform
Nicholas Carey
Justice or Just Us?
Riverbank’ Frank Doolan
Giving Victims of Intimate Partner
Violence Offences a Voice in
Indigenous Sentencing Courts
Elena Marchetti
Giving a Voice to Aboriginal People:
Why Aboriginal People in Australia
Need Wills More Than Everyone Else
Prue Vines
One Country, Two Systems’: The
Middle Way for Protecting Human
Rights in Hong Kong
Johnson Man
Protecting Minority Languages and
the Mute-ability of International and
Australian Law
Stephen Tully
‘
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88
98
EDITOR-IN-CHIEF
Angelina Yurlova
is a fourth year Arts/Law
student who has been
promoted from editor to editor-
in-chief but, unfortunately, she
has not found the same success
in her career as a ballerina.
She embraces art, anything
dog-related, and the oxford
comma with great enthusiasm.
She is also an impenitent
perfectionist.
Christine Maibom
student. When she isn’t
studying, she enjoys cycling
downhill, hanging out with
her pet sausage dog, and
convincing herself that being
a lawyer is just as glamorous
as it is on TV.
Ellen O’Rourke
is a third year Arts/Law student.
She has recently given up on
reality TV in favour of scrolling
the UNSW Law Society
Discussion Forum.
Oliver Ray
student who loves long baths,
fresh raspberries and railing
against neoliberalism. Despite
his enthusiasm for tea, Oliver
recognises the industry’s
complicity in modern slavery
and wonders if he’ll ever be
able to enjoy anything again.
EDITORIAL TEAM
Cristina Beretta
student and baking aficionado
who believes that an en-dash
of sugar can make all the
difference. While she is good
at tempering her emotions,
the same cannot be said of her
skills with chocolate.
Amelia Brown
is a fourth year Science/Law
student who can read a whole
novel in a day but cannot read a
single chapter of BA in several
weeks. She enjoys walking in
the park and trying to avoid
using AGLC rule 6.9.
Paris Donnelly
Fifth year, Arts/Law,
overzealous, unapologetic,
captivating. Five out of ten
would recommend to a friend.
William Laksana
is a fourth year Commerce/
Law student. When not
debating about the requisite
mens rea of jaywalking or
extolling the virtue of jabots,
he may be heard practising his
terrible Glaswegian accent.
He also enjoys doing perfectly
normal activities.
UNSW Law Society
unswlawsoc.org
SOCIAL JUSTICE VICE PRESIDENT
Khushaal Vyas
PRESIDENTS
Audrey Chan
Justin Teo
ILLUSTRATIONS
Miri Badger
is a 20-year-old visual artist,
studying at the National Art
School. Her work has its roots
in expressive figurative painting
that explores a myriad of
mediums and subject matters.
Find Miri on Facebook
(/badgerart) and Instagram
(@miri_badger).
DESIGN
Nicholas Watts
‘
‘
32

Editorial
If all mankind minus one, were of one opinion, and only one person
were of the contrary opinion, mankind would be no more justified in
silencing that one person, than he, if he had the power, would be justi-
fied in silencing mankind’.1
– John Stuart Mill.
I welcome you to the 10th Issue of Court of Conscience.
Given that Court of Conscience is celebrating its 10th anniversary, it is
quite symbolic that this year we have 10 articles that respond to the 2016
thematic – ‘Giving Voice to Minority’.
It is not an easy task to articulate a thematic that provides a mean-
ingful stimulus while, at the same time, maintaining the integrity of the
subject matter, especially when dealing with a sensitive topic such as
‘minority’. Although the phrase ‘giving voice’ is widely used in literature
concerning minority groups, the premise needs to be problematised.
What does it mean to give voice? Whose voice is it? Is it ours to give?
Conceptually, the thematic seeks to transcend this idea of ‘giving a voice’
to a particular minority and, instead, shift the focus to an individual’s
ability to give voice to issues that may be misunderstood, distorted, or
overlooked by the majoritarian dialogue.
This Issue features a diverse and unique collection of contributions
submitted by academics from a variety of Australian universities, as well
as a Wiradjuri Elder, a barrister, and UNSW Law students.
In the context of the criminal justice system, Piers Gooding, Sarah
Mercer, Eileen Baldry and Anna Arstein-Kerslake, as well as Elena
Marchetti, advocate for a more positive justice experience by examin-
ing the implications of trials for persons with cognitive disabilities and
exploring the benefits of Indigenous sentencing courts, respectively.
The Australian treatment of asylum seekers is a pressing issue in
both the media and academic discourse. Natasha Naidu draws attention
to the way in which underage asylum seekers, one of the most vulnera-
ble groups in our society, are denied a voice by a system that is plagued
with conflict, whilst Linda Briskman emphasises the role of ‘people of
conscience’, that is, asylum seeker advocates, in speaking out against the
immorality of this system.
Australians were appalled by the revelations of child abuse that
led to the Royal Commission into the Protection and Detention of
1. John Stuart Mill, On Liberty (Longmans, Green, and Co, 1865) 10.
Children in the Northern Territory.2 With the recent release of the ABC
Four Corners program Backing Bourke,3 it is clear that a new approach
to Indigenous and youth incarceration is critical. In their articles, Rob
White and Nicholas Carey both highlight one such approach – ‘justice re-
investment’. The authors underscore the serious injustice brought about
under the current system and vividly illustrate the need for change that
both incorporates and responds to community voices. We are honoured
to publish the insights of ‘Riverbank’ Frank Doolan, a Wiradjuri Elder
from the Dubbo region, who also argues in favour of a community-based
approach as opposed to increased prison funding and hopes for reconcil-
iation between all Australians.
We are given a prescient reminder by Prue Vines and Stephen Tully
about the potential of legal instruments to be mechanisms which ensure
that the voices of minorities are heard.
Johnson Man provides an international perspective through an ex-
amination of the ‘one country, two systems’ constitutional principle as a
way to protect the freedom and rights of Hong Kong citizens.
I would like to extend my utmost gratitude to the 2016 Court of
Conscience Editorial Team. Over the past year, they have worked tirelessly
to ensure that each article is of the highest standard. This publication is
the culmination of their diligence, attention to detail, and enthusiasm. It
has been a pleasure to work with such brilliant individuals.
The cover, as well as each illustration, has been masterfully created
by Miri Badger. Not only are her artworks beautiful – they are evocative
and thought-provoking.
The publication is crisp and professional and has come together
seamlessly under the skill and guidance of Nicholas Watts. I am very
grateful for his continued involvement with Court of Conscience.
I would also like to acknowledge the UNSW Law Society and the
UNSW Faculty of Law for their support of this publication.
The 10th Issue of Court of Conscience is everything that I envisaged
and more. Thank you to everyone who has made this vision a reality.
I commend the authors on their depth and insight and for making a
worthy contribution to the ongoing dialogue of Court of Conscience.
Angelina Yurlova
Editor-in-Chief
2. The Royal Commission is due to report by 31 March 2017.
3. Backing Bourke (Directed by Lisa McGregor, Australian Broadcasting Corporation, 2016).
‘
54
Court of Conscience

Unfitness to Stand Trial:
The Indefinite Detention
of Persons with Cognitive
Disabilities in Australia
and the United Nations
Convention on the Rights of
Persons with Disabilities
Piers Gooding,*
Sarah Mercer,**
Eileen Baldry*** and
Anna Arstein-Kerslake****
Unfitness to stand trial laws in Australia potentially help accused persons
with cognitive disabilities avoid unfair trials – in particular by avoiding pro-
ceedings in which they cannot participate. Yet such laws can create a separate
and lesser form of justice that undermines due process rights and substantive
equality. Moreover, unlike those tried and convicted, persons deemed unfit to
stand trial may be indefinitely detained, potentially for longer than would fol-
low a typical trial. Unequal treatment of this kind appears to violate fundamen-
tal rights enshrined in domestic and international human rights law; namely,
rights to equal recognition before the law, access to justice, and liberty and
security of the person. This article briefly outlines these issues with particular
consideration of Australia’s obligations under the United Nations Convention
on the Rights of Persons with Disabilities (‘UNCRPD’). It also outlines a
program of formal support being developed for accused persons with cognitive
disabilities in three Australian jurisdictions by researchers at the University of
Melbourne and the University of New South Wales.
I INTRODUCTION
Laws on unfitness to stand trial – despite being framed as protective
in nature – can have adverse consequences for accused persons with
cognitive disabilities.1 Unfitness to stand trial laws allow courts to deter-
mine that a person cannot participate in or understand the criminal trial
proceedings brought against him or her. A number of high-profile cases
* Dr Piers Gooding is a Post-Doctoral Research Fellow at the Melbourne Social Equity
Institute and Disability Research Initiative, University of Melbourne.
** Ms Sarah Mercer is a JD graduate of the Melbourne Law School and Research Assistant
at the Melbourne Social Equity Institute for the Unfitness to Stand Trial project.
*** Eileen Baldry is a Professor of Criminology and Academic Chair, NSW Equity, Diversity
and Inclusion Board at UNSW and a Chief Investigator for the Unfitness to Stand Trial
project.
**** Dr Anna Arstein-Kerslake is a lecturer at the Melbourne Law School, Founding Director
of the Human Rights Law Clinic, and Academic Co-ordinator of the Disability Research
Initiative at the University of Melbourne. She is also a Chief Investigator for the
Unfitness to Stand Trial project.
1. The term ‘cognitive disabilities’ is used broadly here to refer to mental health-re-
lated disability, intellectual disability, acquired brain injury, communication disa-
bilities, etc. Although not used in the UNCRPD, this term is increasingly used else-
where in the disability and human rights field. See, eg, Anna Arstein-Kerslake, ‘An
Empowering Dependency: Exploring Support for the Exercise of Legal Capacity’ (2014)
18 Scandinavian Journal of Disability Research 1; Eileen Baldry et al, ‘A Predictable
and Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the
Criminal Justice System’, (IAMHDCD Project Report, UNSW, October 2015) 31.
76
Court of Conscience

proceedings.7 The project is being led by researchers at the University of
Melbourne and the University of New South Wales, in partnership with
community legal centres in three Australian jurisdictions. The project
has a strong focus on the provision of assistance to Indigenous accused
persons with cognitive disabilities who are disproportionately subject to
unfitness to stand trial determinations.
II UNFITNESS TO STAND TRIAL: KEY ISSUES
Unfitness to stand trial laws have been described as having the pur-
poses of protecting ‘the integrity of a criminal trial (and, arguably, the
criminal law itself)’ which would ‘be prejudiced if the defendant does
not have the ability to understand and participate in a meaningful way’.8
Australian unfitness to stand trial laws are framed as a protective meas-
ure to shield an accused with cognitive disabilities from unfair trials,9
while at the same time ensuring efficient proceedings (by diverting the
person to relevant services), and seeking community protection.10
The unfitness to stand trial doctrine has been adopted in every
Australian jurisdiction.11 The current test for unfitness was articulated in
the case of R v Presser,12 which has since been codified into legislation in
most jurisdictions or incorporated implicitly through the common law.13
7. Melbourne Social Equity Institute, Unfitness to Plead and Indefinite Detention of Persons
with Cognitive Impairments: Addressing the Legal Barriers and Creating Appropriate
Alternative Supports in the Community (17 November 2015) The University of Melbourne
<http://socialequity.unimelb.edu.au/research/projects/disability-and-mental-health/
unfitness-to-plead>.
8. Australian Law Reform Commission, Report No 124, above n 5, 73.
9. Thomson Reuters, The Laws of Australia (at 1 November 2013) 9 Mental Impairment
(Insanity) and Fitness to Plead, ‘3 Fitness to be Tried’ [9.3.1950].
10. Department of the Attorney General (WA), above n 5, 36 [54]. Here it is considered to
be the paramount purpose of the unfitness to stand trial scheme.
11. Crimes Act 1900 (ACT) pt 13; Crimes Act 1914 (Cth) pt IB div 6; Mental Health (Forensic
Provisions) Act 1900 (NSW) pt 2; Criminal Code Act (NT) sch 1 pt 2A div 3; Mental Health
Act 2000 (Qld) pt 6; Criminal Law Consolidation Act 1935 (SA) pt 8A Div 3; Criminal
Justice (Mental Impairment) Act 1999 (Tas) pt 2; Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 (Vic) pt 2; Criminal Law (Mentally Impaired Accused) Act
1996 (WA) pt 3.
12. [1958] VR 45.
13. See Crimes Act 1900 (ACT) s 311; Crimes Act 1914 (Cth) Pt IB Div 6; Criminal Code Act
(NT) s 43J; Criminal Law Consolidation Act 1935 (SA) s 269H; Criminal Justice (Mental
Impairment) Act 1999 (Tas) s 8; Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 (Vic) s 6; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 9; R v Taylor
have highlighted the laws’ potentially inequitable outcomes. For exam-
ple, a 14-year-old Indigenous teenager from Western Australia, ‘Jason’,
was reported to have been detained for over 11 years after he was found
unfit to stand trial for a charge of manslaughter.2 Comparable sentences
for juvenile detention were three to four years following conviction.3
In 2014, the Australian Human Rights Commission reported that the
Commonwealth and Northern Territory governments violated the rights
of two Indigenous men who were detained indefinitely in the Alice
Springs Correctional Centre after being found unfit to plead.4
Law reform efforts across Australia in recent years have sought to
address concerns with unfitness to stand trial laws.5 One factor influ-
encing these efforts is Australia’s ratification of the UNCRPD6 in 2007.
A common recommendation of reformers, drawing upon the UNCRPD,
is to introduce formal support for accused persons with disabilities to
enhance participation in criminal proceedings.
A number of initiatives are underway to develop such support,
including a cross-jurisdictional research initiative that aims to devel-
op solutions in law, policy and practice to assist accused persons with
cognitive disabilities at risk of being unable to participate in criminal
2. ‘“Urgent Need” For Law Change as Mentally-Impaired Accused Detained
Indefinitely, WA Chief Justice Wayne Martin Says’ ABC News (on-
line), 10 July 2015 <http://www.abc.net.au/news/2015-07-10/
push-for-mentally-impaired-accused-law-change-in-wa/6611010>.
3. See, eg, R v S (a child) (No 2) (1992) 7 WAR 434; R v T (a child) (1993) 17 MVR 100.
4. KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80.
5. Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 (Vic) (2014); New South Wales Law Reform Commission,
People with Cognitive and Mental Health Impairments in the Criminal Justice System:
Criminal Responsibility and Consequences, Report No 138 (2013); Australian Law Reform
Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124
(2014). See also Law Reform Committee, Parliament of Victoria, Inquiry into Access to
and Interaction with the Justice System by People with an Intellectual Disability and
their Families and Carers (2013); Department of the Attorney General (WA), ‘Review of
the Criminal Law (Mentally Impaired Accused) Act 1996’ (Final Report, Department of
the Attorney General (WA), April 2016).
6. Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).
See also Australian Law Reform Commission, Equality, Capacity and Disability in
Commonwealth Laws, Discussion Paper No 81 (2014) 3–5; Victorian Law Reform
Commission, above n 5, 30; New South Wales Law Reform Commission, People with
Cognitive and Mental Health Impairments in the Criminal Justice System: Diversion,
Report No 135 (2012) 34; Department of the Attorney General (WA), above n 5, 73–4.
98
Court of ConscienceUnfitness to Stand Trial
Piers Gooding, et al

The test considers the accused person’s ability to:
1. Understand the nature of the charge;
2. Plead to the charge and exercise the right of challenge;
3. Understand the nature of the proceedings;
4. Follow the course of the proceedings;
5. Understand the substantial effect of any evidence that may be
given in support of the prosecution; and
6. Make a defence or answer the charge.14
The Australian Law Reform Commission raised concerns that the
Presser criteria did not take into account the ‘possible role of assistance
and support for defendants’.15 This recommendation was echoed by the
New South Wales Law Reform Commission16 and the Victorian Law
Reform Commission.17 While the test of unfitness is largely the same
throughout Australia, jurisdictions differ in the alternative procedures
that follow, including options for disposition.
A Procedures after a finding of unfitness
Once a determination of unfitness has been made, most jurisdic-
tions18 provide ‘special hearings’ to test the merits of the charge against
the accused. ‘Special hearings’ are essentially truncated trials designed to
ensure that an individual’s liberty is not restricted without proper
[2014] SASCFC 112 [9]; Kevasarajah v R (1994) 181 CLR 230, 243–5; R v Gallagher [2012]
NSWSC 484 [11]; Berg v DPP (Qld) [2015] QCA 196 [54].
14. Kesavarajah v R (1994) 181 CLR 230, 245.
15. Australian Law Reform Commission, Discussion Paper No 81, above n 6, 163 [7.32].
16. New South Wales Law Reform Commission, Criminal Responsibility and Consequences,
above n 5, 35.
17. Victorian Law Reform Commission, above n 5, 87 [3.116], 89.
18. Australian Capital Territory, New South Wales, Victoria, South Australia, Tasmania and
Northern Territory. Crimes Act 1900 (ACT) s 316; Mental Health (Forensic Provisions) Act
1900 (NSW) s 21; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16;
Criminal Law Consolidation Act 1935 (SA) s 269M; Criminal Justice (Mental Impairment)
Act 1999 (Tas) s 16; Criminal Code Act 1983 (NT) s 43W.
1110

B Dispositions
Dispositions available following a finding of unfitness to stand trial
differ between jurisdictions. Dispositions include custodial orders or
non-custodial supervision orders. Non-custodial supervision orders
often include conditions aimed at rehabilitation through medical treat-
ment, counselling and other forms of service provision.
Custodial orders vary considerably across Australia. Some juris-
dictions allow for indefinite detention ‘until released by order of the
Governor’27 (Western Australia) or a mental health tribunal (Tasmania
and Queensland),28 while others provide for ‘nominal terms’ (Northern
Territory and Victoria),29 where the accused is brought back after a speci-
fied term for ‘major review’.30 The third model of custodial disposition is
a limiting term (New South Wales and South Australia),31 which is based
on ‘the best estimate of the sentence the court would have considered
appropriate’ had they been tried and ‘found guilty of that offence’.32 This
seemingly avoids the potential for indefinite detention on the basis of
impairment and the risk that an innocent accused would prefer to plead
guilty than face indefinite detention.33 However, even in New South
Wales, health authorities may apply for extensions of custodial orders,34
meaning the spectre of indefinite detention remains.
Uniquely, the Commonwealth unfitness to stand trial law was drafted
with the express intention of abolishing indefinite detention,35 and ap-
for Trial’ (2016) 90 Australian Law Journal 172.
27. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 24(1).
28. Tasmania and Queensland. See Criminal Justice (Mental Impairment) Act 1999 (Tas) s 37;
Mental Health Act 2000 (Qld) s 200.
29. Criminal Code Act 1983 (NT) s 43ZG; Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997 (Vic) s 28(1).
30. Criminal Code Act 1983 (NT) s 43ZG; Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997 (Vic) s 35.
31. Mental Health (Forensic Provisions) Act 1990 (NSW) s 23(1)(b); Criminal Law Consolidation
Act 1935 (SA) s 269O(2).
32. Ibid s 23(1)(b).
33. Suzie O’Toole, Jodie O’Leary and Bruce D Watt, ‘Fitness to Plead in Queensland’s Youth
Justice System: The Need for Pragmatic Reform’ (2015) 39 Criminal Law Journal 40, 42.
34. See Mental Health (Forensic Provisions) Act 1990 (NSW) sch 1.
35. Commonwealth, Parliamentary Debates, House of Representatives, 5
October 1989, 1603 (Robert Brown, Minister for Land Transport and Shipping)
<http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=-
CHAMBER;id=chamber%2Fhansardr%2F1989-10-05%2F0124;query=Id%
3A%22chamber%2Fhansardr%2F1989-10-05%2F0000%22>.
basis.19 At the Commonwealth level there is no provision for ‘special
hearings’, although the judge must consider that a prima facie case has
been established.20 Queensland and Western Australia do not require
‘special hearings’. In Queensland the accused person is referred to a men-
tal health court.21 In Western Australia however, before making a custo-
dy order, the judge needs only to be satisfied that it is appropriate to do
so having regard to, among other factors, ‘the strength of the evidence
against the accused’.22 However, this often involves only cursory consid-
eration of the evidence.23
In all jurisdictions, even those seen as having the most up-to-date
laws, concerns have been raised that the procedures following a finding
of unfitness to stand trial do not secure due process rights on an equal
basis with others.24 Potential disadvantages include a lack of the full
range of defences and less opportunities to test the prosecution’s case.25
In New South Wales, for example, an accused person with cognitive dis-
abilities, who is determined to be unfit to stand trial, is assumed to have
pleaded not guilty in relation to the charge which removes the benefits
of entering an early guilty plea in sentence mitigation.26
19. See, eg, Mental Health (Forensic Provisions) Act 1900 (NSW) s 19. In Subramaniam v R
(2004) 211 ALR 1, 12 [40], the High Court explained that the purpose of these hearings is:
first to see that justice is done, as best as it can be in the circumstances, to the accused person
and the prosecution. She is put on trial so that a determination can be made of the case against
her. The prosecution representing the community has an interest also in seeing that justice be
done. A special hearing gives an accused person an opportunity of being found not guilty in
which event the charge will cease to hang over her head, and if she requires further treatment
that it may be given to her outside the criminal justice system.
20. Crimes Act 1914 (Cth) s 20B(3).
21. Mental Health Act 2000 (Qld) s 257.
22. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 16(6)(a), 19(5)(a).
23. Western Australia v Tax [2010] WASC 208 [3] (Martin CJ); Western Australia v Stubley [No
2] [2011] WASC 292 [19].
24. See Mindy Sotiri, Patrick McGee and Eileen Baldry, ‘No End in Sight: The Imprisonment
and Indefinite Detention of Indigenous Australians with a Cognitive Impairment’
(Report, Aboriginal Disability Justice Campaign, September 2012); Eileen Baldry,
‘Disability at the Margins: Limits of the Law’ (2014) 23 Griffith Law Review 357, 370–88.
25. Anna Arstein-Kerslake et al, ‘Human Rights and Unfitness to Plead: The Demands of the
Convention on the Rights of Persons with Disabilities’ Human Rights Law Review (forth-
coming); Piers Gooding et al, ‘Unfitness to Stand Trial and the Indefinite Detention of
Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals
for Change’ Melbourne University Law Review (forthcoming).
26. Kerri Eagle and Andrew Ellis, ‘The Widening Net of Preventative Detention and the Unfit
1312

concerns, which have been elaborated upon elsewhere.41 In summary,
concerns have been raised that unfitness to stand trial laws violate the
prohibition of discrimination on the basis of a disability,42 the right to
equal recognition before the law,43 the right of access to justice,44 and the
right to liberty and security of the person.45 The forced medical treat-
ment that can follow findings of unfitness may also violate a number of
rights set out in the UNCRPD.46
The United Nations Committee on the Rights of Persons with
Disabilities, an independent body of experts appointed by ‘States Parties’
to the UNCRPD to monitor the implementation of the UNCRPD, has
released a statement calling on States Parties such as Australia to remove
declarations of unfitness to stand trial from their criminal laws.47 The
Committee raised particular concerns with provisions permitting indefi-
nite detention on the basis of disability.48
The positive obligations set out in the UNCRPD dovetail with calls to
increase support measures to enable persons with disabilities to access
justice on an equal basis with others.49 These obligations include the
41. See Piers Gooding et al, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons
with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for
Change’ (2017) 40(3) Melbourne University Law Review (forthcoming); Piers Gooding,
Sarah Mercer, Bernadette McSherry and Anna Arstein-Kerslake, ‘Supporting Accused
Persons with Cognitive Disabilities to Participate in Criminal Proceedings in Australia
– Avoiding the Pitfalls of Unfitness to Stand Trial Laws’ (forthcoming); Anna Arstein-
Kerslake, Piers Gooding, Louis Andrews and Bernadette McSherry, ‘Human Rights and
Unfitness to Plead: The Demands of the Convention on the Rights of Persons with
Disabilities’ (forthcoming).
42. Convention on the Rights of Persons with Disabilities, opened for signature 30 March
2007, 2515 UNTS 3 (entered into force 3 May 2008) arts 2, 3, 5.
43. Ibid art 12.
44. Ibid art 13.
45. Ibid art 14.
46. Ibid arts 14, 17, 25.
47. Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the
Convention on the Rights of Persons with Disabilities, CRPD, 14th sess (adopted 17
August–4 September 2015) [16]. See also Committee on the Rights of Persons with
Disabilities, Concluding Observations on the Initial Report of Ecuador, UN Doc CRPD/C/
ECU/CO/1 (27 October 2014) [29(b)]; Committee on the Rights of Persons with
Disabilities, Concluding Observations on the Initial Report of Republic of Korea, UN Doc
CRPD/C/KOR/CO/1 (29 October 2014) [28].
48. Committee on the Rights of Persons with Disabilities, Guidelines on Article 14 of the
Convention on the Rights of Persons with Disabilities, CRPD, 14th sess (adopted 17
August–4 September 2015) [20].
49. See also Stephanie Ortoleva, ‘Inaccessible Justice: Human Rights, Persons with
pears to provide for a truly definite term that must not exceed the max-
imum period that could have been imposed following conviction of the
original charge.36 However, judicial scrutiny of this provision is lacking.
III REFORM TRENDS: PROCEDURAL FAIRNESS, SUBSTANTIVE EQUALITY
AND ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES
Law reform commissions and other commentators have recognised
that an ideal outcome for accused persons with disabilities is to proceed
to the normal criminal trial process whenever possible. The Australian
Human Rights Commission has stated that a full trial is ‘best not just for
the defendant, but also for those affected by an offence and society more
generally’.37 Further:
It is in a defendant’s interests to participate in the full trial process be-
cause it includes procedural protections, but also because of the adverse
consequences if found unfit to stand trial, including the real risk of indefi-
nite detention.38
The Commission made a series of recommendations in its submis-
sion to a 2016 Senate Inquiry into the Indefinite Detention of People with
Cognitive and Psychiatric Impairment In Australia (‘the Inquiry’).39 The
Inquiry marks a recent addition to increasing law and policy reform
activity related to disability in Australia in recent years. The UNCRPD is
an important driver in this trend, and can be seen to have given greater
impetus and legitimacy to the national focus on disability.
Concerns have been raised that unfitness to stand trial laws across
Australia contravene a number of articles of the UNCRPD by virtue of
creating a separate and lesser form of justice for persons with cognitive
disabilities.40 It is outside the scope of this brief article to detail these
36. Crimes Act 1914 (Cth) s 20BC(2).
37. Australian Human Rights Commission, Submission No 6 to the Senate Community
Affairs References Committee, Inquiry into the Indefinite Detention of People with
Cognitive and Psychiatric Impairment in Australia, March 2016, 16–17 [62].
38. Ibid 17 [62].
39. Ibid 5–6.
40. Committee on the Rights of Persons with Disabilities, Concluding Observations on the
Initial Report of Australia, CRPD/C/AUS/CO/1 (21 October 2013) 4 [31]; Committee on
the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of
Brazil, UN Doc CRPD/C/BRA/CO/1 (29 September 2015) 4 [30].
1514

centres across Australia to develop and evaluate a model of support for
accused persons with cognitive disabilities at risk of being deemed unfit
to stand trial (‘Unfitness to Stand Trial project’).57 The project aims to
analyse the social, legal and policy issues that lead to unfitness to stand
trial determinations and indefinite detention. The project will have a
specific focus on Indigenous people, who are disproportionately affected
by unfitness to stand trial laws. Not only are Aboriginal and Torres Strait
Islanders over-represented in the criminal justice system, they are also
more likely to experience cognitive disabilities. The Australia-wide in-
carceration rate for Aboriginal and Torres Strait Islander prisoners aged
18 years and over is 27 per cent, whereas the total Aboriginal and Torres
Strait Islander population aged 18 years and over in 2015 was approxi-
mately two per cent of the Australian population aged 18 years
and over.58
The researchers will make recommendations for law and poli-
cy, including proposals for good practice models in supported deci-
sion-making for accused persons with disabilities. As noted, despite
recommendations from three major law reform agencies to introduce
formal support for accused persons with cognitive disabilities to prevent
unfitness determinations,59 no such measures have been implemented in
any Australian jurisdiction. This project seeks to address this gap. It will
develop and implement a support program, working within three com-
munity legal centres – namely, the Intellectual Disability Rights Service
(New South Wales), the Victorian Aboriginal Legal Services (Victoria), and
the North Australian Aboriginal Justice Agency (Northern Territory) – to
provide assistance to accused persons with cognitive disabilities at risk
of being deemed unfit to stand trial or being unable to participate in
proceedings against them. This practical research will be combined with
an investigation into the broader requirements of international human
57. This project is jointly funded by Commonwealth, state and territory governments
under the National Disability Special Account, administered by the Department of
Social Services on behalf of the Commonwealth, state and territory Research and Data
Working Group.
58. Australian Bureau of Statistics, ‘4517.0 – Prisoners in Australia’ (11 December
2015) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20
Subject/4517.0~2015~Main%20Features~Aboriginal%20and%20Torres%20Strait%20
Islander%20prisoner%20characteristics~7>.
59. See New South Wales Law Reform Commission, Report No 138, above n 5, 35 [2.86]
(recommendation 2.2); Victorian Law Reform Commission, above n 5, 89 [3.126]
(recommendation 18); Australian Law Reform Commission, Report No 124, above n 5,
17 (recommendation 7–1).
provision of support to exercise legal capacity50 and ‘procedural and
age-appropriate accommodations’ to access justice on an equal basis
with others.51 Such ‘positive liberties’ give greater impetus to courts
to modify proceedings and provide supports to improve accessibility.
As noted, the current test for unfitness to stand trial does not incorpo-
rate a requirement to ensure supports to ‘optimise’ a person’s fitness
to stand trial, as has been recommended by the Australian Law Reform
Commission, the Victorian Law Reform Commission and the New
South Wales Law Reform Commission.52 The Victorian Law Reform
Commission noted that ‘[t]he importance of support measures in the
unfitness to stand trial process was one of the strongest themes to come
out of the Commission’s review’ of the issue.53 Further, support meas-
ures can ‘optimis[e] an accused’s fitness where they might otherwise be
unfit’54 and yet ‘support measures … are not necessarily considered, pro-
vided or available’.55 Importantly, no such support measures have been
evaluated in Australia.
While unfitness to plead applies to persons with cognitive disa-
bilities accused of indictable offences, a form of indefinite detention
can be imposed on people accused of lesser offences. Roseanne Fulton
experienced this form of detention (indefinite remand) for driving
offences. Indigenous Australians experience this type of detention
disproportionately.56
IV THE UNFITNESS TO STAND TRIAL PROJECT’S SUPPORTED
DECISION-MAKING MODEL
Researchers at the University of Melbourne and the University
of New South Wales have collaborated with several community legal
Disabilities and The Legal System’ (2011) 17 ILSA Journal of International & Comparative
Law 282; Eilionoir Flynn, Disabled Justice? Access to Justice and the UN Convention on
the Rights of Persons with Disabilities (Ashgate, 2015) 11–16.
50. UNCRPD art 12(3).
51. Ibid art 13.
52. See New South Wales Law Reform Commission, Criminal Responsibility and
Consequences, above n 5, 20–1 [2.22]–[2.28]; Victorian Law Reform Commission, above
n 5, 89 [3.124]–[3.125]; Australian Law Reform Commission, Report No 124, above n 5,
199-200 [7.35]–[7.40].
53. Victorian Law Reform Commission, above n 5, 89 [3.124].
54. Ibid.
55. Ibid 89 [3.125].
56. Sotiri, McGee and Baldry, above n 23; Baldry, above n 23, 370–88.
1716

rights law on unfitness to stand trial laws, and ways to improve proce-
dural protections and substantive equality for persons with disabilities in
the criminal justice system.
V CONCLUSION
At a minimum, Australia’s obligations under international human
rights law require the availability of effective support for accused per-
sons at risk of being deemed unfit to stand trial or being unable to partic-
ipate in proceedings against them due to disability. Such steps will facili-
tate equal recognition before the law, access to justice and freedom from
deprivation of liberty on the basis of disability. The Unfitness to Stand
Trial project will offer evidence-based law and policy reform recommen-
dations to better ensure participation by persons with disabilities in the
criminal justice system on an equal basis with others.
18
Unfitness to Stand Trial

Resisting Silence:
Asylum Seekers and
Voices of Conscience
Linda Briskman*
‘ … there are unbearable things all around us … The worst attitude is
indifference’.1
– Stéphane Hessel.
I INTRODUCTION
I am an academic human rights activist, who for around 15 years has
garnered and disseminated information on asylum seeker detention in
the hope of influencing policy and opinion. From 2005, I was a convener
of the People’s Inquiry into Detention (‘the People’s Inquiry’),2 a collabo-
rative endeavour initiated by the Australian Council of Heads of Schools
of Social Work. In undertaking this social action inquiry there was hope
that the egregious findings would make self-evident the immorality of
asylum seeker detention. More than a decade after commencing this
undertaking, asylum seeker advocates lament that politics in this sphere
have regressed, and despite harsh rebuke from human rights bodies, the
heartlessness of government-induced misery continues unabated. The
gulf between the government’s quest for border security and advocates’
quest for human security widens.3 But what is increasingly clear from
the People’s Inquiry and beyond is the importance of documenting
narratives derived from experiences of asylum seeker detention. As this
article will reveal, this quest is becoming increasingly difficult.
This article presents a brief overview of Australia’s asylum seeker
policies and the arguments promulgated by government for maintain-
ing mandatory detention and extending it beyond Australia’s borders.
It then examines the manner in which the silencing of ‘people of con-
science’4 has occurred and showcases endeavours to overcome this pur-
poseful exclusion. The main focus is offshore detention as this has been
subject to strident admonition in recent years.
* Professor of Human Rights at the Swinburne Institute for Social Research.
1. Stéphane Hessel, Time for Outrage: Indignez-vous! (Hachette Book Group, 2011) 11.
2. Linda Briskman, Susie Latham and Chris Goddard, Human Rights Overboard: Seeking
Asylum in Australia (Scribe, 2008).
3. Linda Briskman, ‘A Clash of Paradigms for Asylum Seekers: Border Security and Human
Security’ in Bee Chen Goh, Baden Offord and Rob Garbutt (eds), Activating Human
Rights and Peace: Theories, Practice and Contexts (Ashgate, 2012) 175.
4. I use the term ‘people of conscience’ to denote asylum seeker advocates, including
immigration detention employees who have spoken out about what they witnessed in
the course of their work.
2120
Court of Conscience

of Christmas Island in 2010, in which 50 asylum seeker men, women and
children died. Incongruously, whilst saving lives is the rhetorical device
used by the government to convince Australians of its compassion,
incremental cruel policies are designed and implemented to deter boat
arrivals.10 This raises the question of proportionality and punishment of
one group to influence the behaviour of others.
Australia’s policies violate the provisions of the 1951 Refugee
Convention11 and other international agreements that it has signed. These
include the International Convention on Civil and Political Rights (‘ICCPR’),12
the Convention Against Torture (‘CAT’)13 and the Convention on the Rights of
the Child (‘CROC’)14.15 The United Nations Human Rights Committee has
persistently criticised Australia for violating the prohibition on arbi-
trary detention of the ICCPR.16 The United Nations Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has
found that various aspects of Australia’s asylum seeker policies violate
the CAT.17 Asylum seeker advocates, including international human
rights bodies, non-government organisations (‘NGOs’), faith groups
10. Linda Briskman and Michelle Dimasi, ‘Re-living Janga: Survivor Narratives’ in Lynda
Mannik (ed), Migration by Boat: Discourses of Trauma, Exclusion and Survival (Berghahn,
2016) 253–4.
11. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189
UNTS 150 (entered into force 22 April 1954).
12. International Convention on Civil and Political Rights, opened for signature 19 December
1966, 999 UNTS 171 (entered into force 23 March 1976);
13. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force
26 June 1987).
14. Convention on the Rights of the Child, opened for signature 20 November 1989, 1557
UNTS 3 (entered into force 2 September 1990).
15. Tania Penovic, ‘Privatised Immigration Detention Services: Challenges and
Opportunities for Implementing Human Rights’ in Bronwyn Glynis Naylor, Julie Debeljak
and Anita Mackay (eds), Human Rights in Closed Environments (The Federation Press,
2014) 10, 14.
16. Rose Moloney, ‘Crikey Clarifier: Does Australia’s Refugee Policy Breach UN Rules?,
Crikey (online), 29 November 2012 <https://www.crikey.com.au/2012/11/29/
crikey-clarifier-does-australias-refugee-policy-breach-un-rules/>.
17. Human Rights Law Centre, UN Finds Australia’s Treatment of Asylum Seekers Violates
the Convention Against Torture (9 March 2015) <http://hrlc.org.au/un-finds-
australias-treatment-of-asylum-seekers-violates-the-convention-against-
torture/ 9 March, 2015>.
II THE SCOURGE OF ASYLUM SEEKER DETENTION
Arguments made by the government for the mandatory detention
of asylum seekers are spurious. The justifications range from border
control and deterrence of others to the integrity of Australia’s refugee
program. The term ‘People Smugglers Business Model’ entered the
Australian lexicon during Labor Prime Minister Kevin Rudd’s term of
office, gaining traction through ‘sheer repetition’.5 Attempts to control
the ‘smuggler trade’ continue, a trade that is depicted as replete with
‘callous opportunists taking advantage of the vulnerable and the desper-
ate’.6 Alison Mountz contends that human smuggling is in many ways
routine.7 It is, she points out, an historical phenomenon that has existed
for as long as nation states have asserted control of mobility across their
borders:
Due to the sensationalism of stories about smuggling and human interest
in the securitization of national borders, the media partakes in and prom-
ulgates these events as crises. Escalated media coverage heightens public
fears about sovereign control of migration.8
More recently, with the advent (2001), abandonment (2008) and rein-
statement (2012) of offshore detention in Nauru and Papua New Guinea
(Manus Island), a policy imperative has been constructed around the
illegitimate ‘drownings’ argument’.9 The parable of preventing deaths
at sea represents a sustained case for foiling asylum seeker flows, with
the force of government propaganda largely unquestioned by the main-
stream population. The argumentation connects with hyperbole about
people smugglers and the illegality of boats. Stopping deaths at sea is
scandalous deception. It arose after the tragic boat crash on the shores
5. Gabriella Sanchez, ‘The Myth of the People Smugglers’ “Business Model”’,
The Conversation (online), 27 July 2013 <http://theconversation.com/
the-myth-of-the-people-smugglers-business-model-16426>.
6. Sue Hoffman, ‘“If We Die We All Die Together”: Risking Death at Sea in Search of Safety’
in Lynda Mannik (ed), Migration by Boat: Discourses of Trauma, Exclusion and Survival
(Berghahn, 2016) 219, 220.
7. Alison Mountz, Seeking Asylum: Human Smuggling and Bureaucracy at the Border
(University of Minnesota Press, 2010) xv.
8. Ibid.
9. Robin Rothfield (ed), The Drownings’ Argument. Australia’s Inhumanity: Offshore
Processing of Asylum Seekers (Labor for Refugees, 2014).
2322
Resisting Silence
Linda Briskman
Court of Conscience

The health of a democracy relies on many different things: limited govern-
ment; strong civil society; the independence of autonomous institutions;
the encouragement of dissident opinion, wide-ranging debate. All these
values are presently under threat.22
The situation has regressed since Manne penned these words, in
particular the attack on civil society and even bans on dissident opinion.
Intentional silencing erodes not only rights to free speech but also inhib-
its dialogue and negotiation.
The mere practice of immigration detention places asylum seekers
out of sight and out of mind. Being nameless through identification by
numbers reinforces invisibility.23 Secrecy is a privatisation principle of
for-profit detention providers. Through contractual arrangements with
NGOs, similar commercial-in-confidence principles apply, reducing
transparency and obfuscating the public’s right to know.
With both media restrictions on visiting offshore sites and limited
human rights monitoring, secrecy is a pathway to abusive practices. The
media has had almost no access to detention sites, exacerbated by their
distant locations and visa restrictions in countries that house offshore
detention centres. With rare exceptions, reporting is often undertaken
by subterfuge, thanks to the determination of a small but significant
number of determined journalists. Combined with the lack of journal-
istic opportunities are communication restrictions for immigration
detainees with limited access to the Internet. Nonetheless, there have
been some attempts to bypass controls. Articles by Manus Island detain-
ee Behrouz Boochani about lived experiences in detention have been
published in the progressive outlet The Saturday Paper, which will be
illustrated further below.
IV OVERCOMING SILENCE: VOICES OF CONSCIENCE
Detained asylum seekers have been active participants in exposing
human rights abuses and countering the relentless propaganda of gov-
ernment. Protest has been a feature of immigration detention as a dis-
22. Robert Manne, ‘Foreword’ in Clive Hamilton and Sarah Maddison (eds), Silencing
Dissent: How the Australian Government is Controlling Public Opinion and Stifling Debate
(Allen and Unwin, 2007) vii, ix.
23. Roger Cohen, ‘Australia’s Offshore Cruelty’, The New York Times (online), 23 May
2016 <http://www.nytimes.com/2016/05/24/opinion/australias-offshore-cruelty.
html?_r=0>.
and academics condemn the cruelty of offshore detention, with deten-
tion of children in Nauru breaching CROC provisions. The ‘Nauru files’ –
leaked incident reports published by The Guardian – revealed that of the
2000 reports made by detention staff, half concerned children.18 Moving
people, including children, offshore is a process from which many people
profit, and is what the government accuses people smugglers of doing.19
Transporting children to detention in Nauru constitutes ‘commercial-
ised trafficking’ in children.20
Since the introduction of mandatory immigration detention in 1992,
both major political parties have spearheaded ruthless methods, cloaked
as rational policy, aimed at deterring asylum seeker boat arrivals.21
Fortified by the relative popularity of mandatory detention provisions, a
raft of harsh measures have followed. These include temporary visa pro-
visions, slow claims processing for people released from detention and
militarisation of asylum seeker deterrence including boat turn backs.
Competing with the trope of the People Smugglers Business Model,
there has been an accompanying chant of ‘Stop the Boats’, whatever the
human consequences. Detention centre sites have shifted from time
to time but have included metropolitan, rural and remote settings and
Australia’s Indian Ocean Territory of Christmas Island, far from the
Australian mainland. Criticism of mandatory detention has increased
since offshore facilities were established, but to no avail.
III TACTICS OF SILENCING
In 2007, Robert Manne wrote of the threat to democracy under the
government of Prime Minister John Howard:
18. Nick Evershed et al (eds), ‘The Lives of Asylum Seekers in Detention Detailed in a
Unique Database’, The Guardian (online), 10 August 2016 <http://www.theguardian.
com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-
seekers-in-detention-detailed-in-a-unique-database-interactive>.
19. Linda Briskman and Chris Goddard, ‘Australia Trafficks and Abuses Asylum Seeker
Children’, The Age (online), 25 February 2014 <http://www.theage.com.au/comment/
australia-trafficks-and-abuses-asylum-seeker-children-20140224-33cxs.html>.
20. Ibid.
21. See details on policies and ‘mythbusting’ at: Refugee Council of Australia, Mythbusters
and Facts and Figures (2016) Refugee Council of Australia <http://www.refugeecouncil.
org.au/get-facts/>.
2524
Resisting Silence
Linda Briskman
Court of Conscience

‘Since the introduction of
mandatory immigration
detention in 1992, both
major political parties have
spearheaded ruthless methods,
cloaked as rational policy,
aimed at deterring asylum
seeker boat arrivals. Fortified
by the relative popularity
of mandatory detention
provisions, a raft of harsh
measures have followed.’
cursive struggle for reinstatement as right-bearing human beings.24 Fire
and riot have characterised asylum seeker agency and voice, sometimes
with tragic consequences, as with the murder of Iranian Reza Barati on
Manus Island in 2014.25 Suicides and attempted suicides have drawn
attention to the plight of asylum seekers. One of the most shocking
incidents was the self-immolation of Omid Masoumali on Nauru in April
2016, which became visible to the public through television imagery.26
Detainees have found ways to speak to the media, including
Boochani who wrote about health conditions on Manus Island:
… there are dozens of people here who suffer from infections, from joint
and internal diseases. Hot and humid weather, intense psychological pres-
sure and shortage of sanitary facilities have infected many refugees. Three
hundred people take pain pills daily.27
My interest is in probing the role of ‘the professions’ in speaking
out against the odds. Faced with the dual loyalty paradox of where their
obligations lie, health and welfare personnel are faced with the choice
of silence or speaking out against the injustices they witness. Previously
contracted NGOs such as the Salvation Army and Save the Children have
employed personnel from my own profession of social work in offshore
sites. This is alarming because social work is a profession with a Code of
Ethics that not only speaks of human rights and social justice, but also
calls on social workers to strive to eliminate human rights violations.28
With the impossibility of being heard by their employing organisations,
24. Lucy Fiske, Insider Resistance: Understanding Refugee Protest Against Immigration
Detention in Australia, 1999–2005 (PhD Thesis, Curtin University, 2012) v.
25. See Eric Tlozek, ‘Reza Barati Death: Two Men Jailed Over 2014 Murder
of Asylum Seeker at Manus Island Detention Centre’, ABC News (on-
line), 19 April 2016 <http://www.abc.net.au/news/2016-04-19/
reza-barati-death-two-men-sentenced-to-10-years-over-murder/7338928>.
26. See Peter Lloyd, ‘Omid Masoumali, Refugee Who Died af-
ter Setting Himself on Fire, ‘Suffered Without Medical Care’, ABC
News (online), 2 May 2016 <http://www.abc.net.au/news/2016-05-02/
omid-masoumali-without-proper-medical-care-for-hours,-says-wife/7374884>.
27. See Behrouz Boochani, ‘Manus Island’s Appalling Health Care Record’, The Saturday
Paper (online), 16 April 2016 <https://www.thesaturdaypaper.com.au/news/
politics/2016/04/16/manus-islands-appalling-health-care-record/14607288003132>.
28. Australian Association of Social Workers, ‘Code of Ethics’ (Paper presented at the
Australian Association of Social Workers’ Annual General Meeting, Brisbane, 12
November 2010).
2726
Resisting Silence
Linda Briskman
Court of Conscience

Right now we all risk being bystanders. As doctors, the thought of being
a bystander in this situation should be appalling. For us to be serious in
this matter we must take effective action. The only course left to us is to
refuse to participate.34
Offshore detention sites have employed an array of professional
bodies, all of which are bound by professional ethics and practice norms.
Not only have ethical codes and norms been thwarted by confidentiality
agreements, but also through punitive legislative provisions. In 2015, the
Border Force Act35 made it a crime punishable by two years imprisonment
for anyone who engages in work for the Department of Immigration
to disclose information obtained by them in the course of their work.36
Lawyers Greg Barns and George Newhouse suggest that this turns the
Immigration Department into a secret security organisation with police
powers.37 Although this provision arguably terrifies people of conscience
from speaking out publicly when they bear witness to abuses, others
have defied the provisions as shown above.
V BETRAYING HUMAN RIGHTS
As posited by Amy Nethery and Rosa Holman, ‘there is substan-
tial and incontrovertible evidence that the human rights outcomes of
Australia’s offshore detention centres are devastating’.38 Those docu-
mented consequences include severe mental health issues, loss of child-
hood, lack of capacity for control over one’s life and the compounding
of trauma arising from flight and journey. The questions that these
34. John-Paul Sanggaran, ‘Australian Doctors Should Boycott Working in Detention
Centres’, The Age (online), 19 February 2016 <http://www.smh.com.au/comment/
health-care-workers-want-more-than-strong-words-about-asylumseeker-treatment-
20160218-gmx9ku.html>.
35. Australian Border Force Act 2015 (Cth).
36. Ibid s 42; Michael Bradley, ‘Border Force Act: Why Do We Need These Laws’, ABC
News: The Drum (online), 16 July 2015 <http://www.abc.net.au/news/2015-07-16/
bradley-border-force-act:-why-do-we-need-these-laws/6623376>.
37. Greg Barns and George Newhouse, ‘Border Force Act: Detention Secrecy Just Got
Worse’, The Drum (online), 28 May 2015 <http://www.abc.net.au/news/2015-05-28/
barns-newhouse-detention-centre-secrecy-just-got-even-worse/6501086>.
38. Amy Nethery and Rosa Holman, ‘Secrecy and Human Rights Abuse in Australia’s
Offshore Immigration Detention Centres’ (2016) 20 The International Journal of Human
Rights 1018, 1032.
social workers were among people of courage who anonymously con-
tributed to a group statement in 2013 to draw public opinion to the plight
of asylum seekers on Nauru. The workers told of watching helplessly as
those who are mandatorily detained inflicted self-harm, and of trying to
‘motivate the hundreds of men on hunger strike to eat again’.29 The 2016
film Chasing Asylum30 features interviews with former and current social
welfare professionals from the Nauru and Manus Island detention sites –
inexperienced, unprepared and traumatised by their own powerlessness.
Health professionals have broken codes of silence. Psychologist Paul
Stevenson made fourteen ‘deployments’ to Nauru and Manus Island,
concluding that the Australian government is deliberately inflicting
upon people the worst trauma he has ever seen.31 His examples doc-
umented in The Guardian include six unaccompanied boys attempting
mass suicide, an asylum seeker opening his stomach and a three-year
old boy molested by a guard. And then there are medical practitioners
who have not only refused to release from hospital a child destined for
return to detention, but also stood together to demand the release of all
children from detention, citing severe physical, mental, emotional and
social concerns.32 Doctors have continually spoken out, for as Karen Zwi
and Nicholas Talley state: ‘[f]ew issues have united the health profession
as strongly as the dissatisfaction with our country’s response to people
fleeing persecution’.33 For John-Paul Sanggaran, the ethical course of
action is for medical practitioners to boycott working in asylum seeker
detention. He states:
29. Salvation Army Workers, ‘Nauru Staff Condemn Cruel Conditions’, Indymedia (online),
26 July 2013 <http://indymedia.org.au/2013/07/26/nauru-staff-condemn-cruel-
conditions.html>.
30. Chasing Asylum (Directed by Eva Orner, 2016).
31. Paul Stevenson on Australia’s Immigration Detention Regime: ‘Every Day is
Demoralising’ (Edited by Josh Wall, Ben Doherty and David Marr, The Guardian,
2016) 2:19 <https://www.theguardian.com/australia-news/video/2016/jun/20/
paul-stevenson-on-australias-detention-regime-every-day-is-demoralising-video>.
32. Patrick Hatch, Judith Ireland and Chloe Booker, ‘Royal Children’s Hospital Doctors
Refuse to Return Children to Detention’, The Age (online), 11 October 2015 <http://
www.theage.com.au/victoria/royal-childrens-hospital-doctors-refuse-to-return-chil-
dren-to-detention-20151010-gk63xm.html>.
33. Karen Zwi and Nicholas Talley, ‘Death in Offshore Detention: Predictable
and Preventable’, The Conversation (online), 26 April 2016 <https://theconversation.
com/death-in-offshore-detention-predictable-and-preventable-58398>.
2928
Resisting Silence
Linda Briskman
Court of Conscience

conditions confront extend beyond prescribed international conven-
tions to morality and collusion. A range of agencies and individuals
collaborate in inflicting harm, including those professing to espouse
humanitarian aims, such as participating NGOs and their employees.
Australia portrays itself as a human rights–respecting nation. It
argues that it is one of the most generous refugee hosting nations in the
world. Reality rebuts this claim.39 According to the United Nations High
Commissioner for Refugees, the most generous nations in the world
include Turkey, Pakistan, Lebanon, Iran and Jordan.40 As a regular visitor
to Iran, I am overwhelmed by how it hosts around 3 million Afghans41
without the hysteria that is generated by a relatively small number of
asylum seekers in Australia.
VI WAYS FORWARD
Whistleblowing is a discredited endeavour but we can turn this
around to make it heroic. We can express outrage at what is being done
in our name. Stéphane Hessel’s quote at the beginning of this article is
a call to action by people of conscience. We can take inspiration from
the outspoken, particularly those who are prepared to defy conditions
imposed upon them in order to place morality above immoral politics.
Stopping the catastrophe of human harm is in human hands. To
achieve this we first need strong counter-narratives against current
assertions about asylum seekers, in order to challenge policies that
reinforce such assertions. From this, direct challenges can be advanced,
particularly by those who have witnessed human wrongs and are pre-
pared to take risks for the sake of humanity.
39. Geraldine Chua, ‘FactCheck: Does Australia Take More Refugees Per Capita through the
UNHCR than Any Other Country?’, International Business Times (online), 9 September
2015 <http://theconversation.com/factcheck-does-australia-take-more-refugees-
per-capita-through-the-unhcr-than-any-other-country-47151>.
40. June Samo, ‘10 Countries That Accept the Most Refugees’, Borgen
Magazine (online), 22 January 2016 <http://www.borgenmagazine.
com/10-countries-that-accept-refugees/>.
41. Laura Bisaillon, Ehsan Shamsi Gooshki and Linda Briskman, ‘Medico-Legal Borders and
the Shaping of Health Services for Afghans in Iran: Physical, Social, Bureaucratic, and
Public Health Conditions of Care’ (2016) 2 International Journal of Migration and Border
Studies 40, 42.
30
Resisting Silence
Linda Briskman

Minister Dutton’s
Children: Guardianship
of Unaccompanied Minors
in Immigration Detention
Natasha Naidu*
I INTRODUCTION
Currently, under the Immigration (Guardianship of Children) Act 1946
(Cth) (‘IGOC Act’), the Minister for Immigration and Border Protection
(‘the Minister’) is the legal guardian of all unaccompanied minors in
immigration detention.1 The Minister is also responsible for the admin-
istration of Australia’s detention scheme and detention centres. This
presents an irreconcilable conflict of duties between acting in the best
interests of unaccompanied minors, as their guardian, and making deci-
sions relating to the detention of the same minors under the Migration
Act 1958 (Cth) (‘Migration Act’). As a result of this fundamental conflict of
duties, the Minister simultaneously acts as guardian and detainer, carer
and imprisoner, of unaccompanied minors in immigration detention.
The legal guardianship of unaccompanied minors extends to minors liv-
ing in community detention and held detention in Australia and Nauru.
More specifically, the status of the Minister as legal guardian creates
a significant challenge for unaccompanied minors wishing to bring legal
proceedings, such as applying for a visa or partaking in proceedings
at the Refugee Review Tribunal (‘the Tribunal’). This is because a legal
guardian is expected to provide independent legal advice for the minor.2
However, review proceedings are often brought against the decisions
of the Minister and his department. The inadequacy of legal advice and
resources that the Minister provides effectively silences unaccompa-
nied minors wishing to bring proceedings against their guardian and his
delegates. It is therefore pertinent to ask how we can best give voice to
unaccompanied minors in legal proceedings under the current model of
legal guardianship.
This article seeks to henceforth answer that question. Part II will set
out the current legal obligations of the Minister as guardian of unaccom-
panied minors in immigration detention. Part III will examine the rights
and access to legal recourse that unaccompanied minors are currently
provided, as well as challenges that arise. Finally, Part IV will seek to
explore what can be done to remedy this legislative failure.
* Third year Arts/Law student, University of New South Wales. With thanks to the team
at the National Children’s and Youth Law Centre for supporting my interest in children’s
rights and for the invaluable work they do for children nationally.
1. IGOC Act s 6.
2. Bennett v Minister for Community Welfare (1992) 176 CLR 408.
3332
Court of Conscience

III UNACCOMPANIED MINORS AND LEGAL PROCESSES
This Part will explore the legal processes involved in applying for
a visa and partaking in a tribunal review. It will seek to establish the
challenges faced by an unaccompanied minor as a result of the Minister’s
position as his or her guardian.
Section 5AAA(4) of the Migration Act explicitly sets out that the
Minister is not obliged to specify or establish a non-citizen’s protection
claim in Australia.10 While it is unclear whether this provision applies
equally to minors, the section cannot allow the Minister to ‘legislate
out’ of his guardianship duty to provide independent legal assistance to
unaccompanied minors.
A Applying for a Visa
In order for a child to apply for a visa independently, without a guard-
ian, the child must be considered competent in the Gillick sense. This
involves weighing up factors of capacity, age, maturity and understand-
ing.11 However, the Migration Regulations 1994 (Cth) requires a guardian
to sign the visa application form on behalf of an applicant if they are
under 18 years old.12 The question of whether a minor can sign the
form without a guardian was considered in Minister for Immigration and
Multicultural and Indigenous Affairs v WAIK.13 However, the question was
left unresolved except to comment that even if it was an invalid applica-
tion because it was signed by a minor, this did not mean the decision of
the Tribunal to undertake review was a jurisdictional error.14 As Taylor
argues, a visa application is an important and complex legal document.15
A minor in this situation should be allowed to receive independent as-
10. Migration Act s 5AAA(4).
11. Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112. Gillick compe-
tency was incorporated into Australian law in Secretary, Department of Health and
Community Services (NT) v JWB (1992) 175 CLR 218 (‘Marion’s Case’).
12. Migration Regulations 1994 (Cth) reg 2.07(3) requires an applicant to complete an
‘approved form’ in compliance with directions on it. Form 688, the ‘approved form’ to
apply for protection (class XA) visas, requires a guardian to sign if the applicant is under
18. See Minister for Immigration and Multicultural and Indigenous Affairs v WAIK [2003]
FCAFC 307, 6–8 [20]–[25] (The Court).
13. [2003] FCAFC 307.
14. Minister for Immigration and Multicultural and Indigenous Affairs v WAIK [2003] FCAFC
307, 6–9 [19]–[31] (The Court).
15. Taylor, above n 6.
II OBLIGATIONS OF THE MINISTER AS GUARDIAN
The duty of a guardian encompasses a non-delegable duty to act with
loyalty and good faith, and to pursue the best interests of the minor
at all times.3 This best interest duty is enshrined in the United Nations
Convention on the Rights of the Child.4 The High Court has held that
stemming from the Minister’s general duty to care for the welfare of the
unaccompanied minor, there also exists a duty to take steps to obtain
independent legal advice for the minor.5 Additional guardianship duties
include the duty to protect the child from harm, provide education and
offer emotional support.6 However, under the Migration Act the Minister
is required to make decisions regarding the detention of unaccompa-
nied minors. The tension between these two duties is illustrated in the
process of an unaccompanied minor asking for an internal review of a
visa refusal decision. While the Minister, as guardian, has an obligation
to act in the interests of the minor by reconsidering the application, the
Minister as Migration Act administrator has an interest in resisting chal-
lenges to his previous decision.7
It is worth noting that this conflict in duties arises somewhat un-
intentionally. The IGOC Act originally assigned legal guardianship to
the Minister for administrative purposes in the process of adoption of
overseas children. No conflict of duties arises in this process.8 As such,
the IGOC Act did not assign legal guardianship with a view to changing
politico-legal conditions in Australia, nor did it envisage situations where
a conflict may arise.9
3. Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1, 33 [124]; The Bell Group Ltd (in liq)
v Westpac Banking Corporation (No 9) (2008) 39 WAR 1. See also National Children’s
and Youth Law Centre, ‘Guardianship and Independent Legal Representation for
Unaccompanied Minors Seeking Asylum in Australia - Avoiding a Conflict of Interests’
(Draft Discussion Paper, National Children’s and Youth Law Centre, November 2012) 1.
4. Opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September
1990) art 3.
5. Bennett v Minister for Community Welfare (1992) 176 CLR 408.
6. Julie Taylor, ‘Guardianship of Child Asylum-Seekers’ (2006) 34 Federal Law Review 185,
190.
7. Odhiambo v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 29, 47
[90]–[91] (The Court) (‘Odhiambo’).
8. Mary Crock and Mary Anne Kenny, ‘Rethinking the Guardianship of Refugee Children
after the Malaysian Solution’ (2012) 34 Sydney Law Review 437, 447.
9. Ibid 448.
3534
Minister Dutton’s Children
Natasha Naidu
Court of Conscience

sistance from someone appointed by the Minister regarding the applica-
tion.16 Accordingly, there is great need for clear and consistent statutory
regulation of the processes involved in an unaccompanied minor apply-
ing for a protection visa independently.
B Partaking in a Review
The Migration Act does not require a next friend, tutor or guardian to
assist in a review hearing.17 The Federal Court decisions of X v Minister
for Immigration and Multicultural Affairs18 and Odhiambo19 have reinforced
this, creating a situation whereby an unaccompanied minor can be alone
in navigating the review system. In X, North J expressly stated that the
Minister was responsible for ensuring that minors are given a direct
voice to put forward their claims against the denial of rights in admin-
istrative and legal proceedings.20 However, North J concluded that this
responsibility did not enliven any specific obligation to be proactive in
legal representation, such as providing a tutor.21
The Odhiambo decision confirmed that merely being a child does not
entitle an unaccompanied minor to the presence of a guardian at the
hearing. However, the Court indicated that if the minor was ‘so disad-
vantaged, by tender years or mental disability’22 the hearing may be ad-
journed or postponed until legal assistance is available. In this particular
case, the Court did not deem assistance necessary because it was found
that the applicants were able to have proper regard for their own best
interests.23 The Court attributed this ability to the applicants because, al-
though they were under 18 years of age, they had lived independently for
a number of years and had been provided a translator for the hearing.24
16. Ibid 196.
17. Migration Act s 425(1) only requires the Tribunal to ‘invite the applicant to appear
before the Tribunal to give evidence and present arguments.’ In Odhiambo (2002) 122
FCR 29, 49 [101], the Federal Court construed this provision as referring only to the
applicant themselves.
18. (1999) 92 FCR 524 (‘X’).
19. (2002) 122 FCR 29.
20. X (1999) 92 FCR 524, 537–8 [41], [43].
21. Ibid 537–8 [43].
22. Odhiambo (2002) 122 FCR 29, 48 [94].
23. Ibid.
24. Ibid.
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Natasha Naidu
Court of Conscience

In these cases and the cases that followed,25 the courts have con-
firmed that the IGOC Act does not enliven a duty of the Minister to
inform unaccompanied minors of their legal entitlements. The detri-
mental impact of this was illustrated in Jaffari v Minister for Immigration
and Multicultural Affairs.26 Jaffari was either not informed, or did not un-
derstand, that he had 28 days to seek judicial review after being refused
a protection visa in the Tribunal. That Jaffari had lost his right to judicial
review due to not being informed, or not understanding, was viewed by
French J to be ‘of concern’ and ‘a pressing, current issue’.27 The cases re-
veal a lack of consistency and support for unaccompanied minors, which
could be remedied by appointment of a guardian that is not restrained by
a conflict of duties.
IV REMEDYING THE CURRENT POSITION
A Legal Representation
In order to address the specific challenges of legal representa-
tion facing unaccompanied minors due to the current guardianship
arrangement, the author recommends the introduction of a policy
requiring independent legal advisors for all unaccompanied minors
wishing to apply for protection visas or engage in review proceedings.
The assistance should be independent, in order to avoid a conflict of
duties with the Minister. In line with French J’s suggestion in Jaffari,
assistance should be provided up to, and throughout the process of,
judicial review.28 In arranging independent legal advisors, the author
suggests utilising pro-bono legal networks such as the Unaccompanied
Humanitarian Minor Consortium (‘the Consortium’). The Consortium is
a network of non-government organisations, community legal centres,
JusticeConnect and private law firms which work in collaboration to run
High Court challenges for the family reunification rights of Afghan child
refugees.29 The Consortium is successful because it engages diverse pro
bono programs, allowing for increased resources and innovative ideas.
25. See, eg, WACA v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 463.
26. (2001) 113 FCR 524 (‘Jaffari’).
27. Ibid 539 [44]. See also Crock and Kenny, above n 8, 437.
28. Jaffari (2001) 113 FCR 524, 539 [44].
29. JusticeConnect, Unaccompanied Humanitarian Minor Consortium wins
Children’s Law Award (9 September 2014) <https://www.justiceconnect.org.au/
unaccompanied-humanitarian-minor-consortium-wins-childrens-law-award>.
Utilising similar networks would be of great assistance in providing inde-
pendent legal advisors for unaccompanied minors.
B Removing the Minister as Guardian
Of course, the issue of legal representation of unaccompanied mi-
nors speaks to the wider problematic framework of legal guardianship
of minors in immigration detention. In order to adequately address
the root of the problem, it is pressing that the Minister be removed
as guardian and replaced by an Independent Legal Guardian. This was
proposed in the Guardian for Unaccompanied Children Bill30 that was
introduced to the Senate by Senator Sarah Hanson-Young. The Bill was
subsequently referred to the Senate Legal and Constitutional Affairs
Legislation Committee for inquiry. However, the Committee’s February
2015 report concluded that any conflict between the Minister’s duties
was merely ‘perceived’ and not an actual conflict.31 No subsequent
action has been taken.
V CONCLUSION
As has been illustrated above, the position of the Minister as guardian
and detainer, carer and imprisoner, under the IGOC Act fundamentally
fails to meet guardianship requirements to care for the welfare and best
interests of unaccompanied minors in immigration detention. This is
especially problematic in regards to legal proceedings brought by unac-
companied minors, where the lack of legal representation provided by
the Minister fails to give minors a voice. In particular, minors may be
prevented from applying for visas, or be forced to navigate the tribunal
system independently. It is therefore clear that the provision of inde-
pendent legal advisors is essential in order to empower unaccompanied
minors in the legal process. Above all, however, it is highly desirable that
the Minister be removed as the guardian of unaccompanied minors in
immigration detention and replaced by an Independent Legal Guardian.
30. Guardian for Unaccompanied Children Bill 2014 (Cth).
31. Legal and Constitutional Affairs Legislation Committee, Parliament of Australia,
Guardian for Unaccompanied Children Bill 2014 (2015).
3938
Natasha Naidu
Court of Conscience

Justice Investment and
Rob White*
I INTRODUCTION
The recent release of the Australian Red Cross 2016 ‘Vulnerability
Report: Rethinking Justice’ (‘Red Cross Report’) has once again put the
spotlight on ‘justice reinvestment’ as a preferred criminal justice ori-
entation and on the special plight and massive over-representation of
Indigenous people in Australian prisons.1 Among its recommendations
the report emphasises the importance of community buy-in and engage-
ment with justice reinvestment projects and programs. We have heard
such emphases and recommendations before – most notably in regards
to tackling child abuse within Indigenous communities, especially in the
Northern Territory.
This article considers how ‘community’ is constructed in research
and progressive policy pronouncements (generally in terms of participa-
tion and empowerment) and how this contrasts with political debate and
legislative measures that position ‘community’ in diametrically opposite
ways (as itself the source of the problem yet also warranting a social con-
trol response). How investment and intervention are manifested in prac-
tice is fundamentally shaped by how community interests are construed.
This can work for or against specific communities.
II THINKING ABOUT COMMUNITY
The term ‘community’ is used in different ways, leading commenta-
tors many years ago to refer to it as the ‘spray-on solution’, one that can
suit both conservative and progressive purposes.2 Among other things,
it is used descriptively to identify and compare different groups on the
basis of geography (people living in the same area), power structures
(federal, state and local level), services (transport line or school provi-
sion) and social identification (Indigeneity, ethnicity). Social inequality is
especially evident in regards to Indigenous communities as compared to
non-Indigenous communities, across a wide range of economic, health,
welfare and social indicators.3 Yet, ‘community’ can make reference to
* Professor of Criminology, School of Social Sciences, University of Tasmania, Australia.
1. Australian Red Cross, ‘Vulnerability Report: Rethinking Justice’ (Report, Australian Red
Cross, 2016) 5.
2. Lois Bryson and Martin Mowbray, ‘“Community”: The Spray-on Solution’ (1981) 16
Australian Journal of Social Issues 255.
3. Department of the Prime Minister and Cabinet, ‘Closing the Gap: Prime Minister’s
Report 2016’ (Report, Department of the Prime Minister and Cabinet, 10 February 2016).
4140
Court of Conscience

unity and inclusion (we all share the same basic values) in the very same
moment that it connotes division and exclusion (some people live and
act differently to others).
In a criminal justice context, the relationship between community
and police incorporates several dimensions that are relevant to later
observations in this article:
• Policing in the community – the extent to which police are present
within a broad range of social institutions and settings, such as
schools and at the neighbourhood level;
• Policing of the community – the particular task orientation(s) pri-
oritised by police departments;
• Policing by the community – the degree to which the community
(including the media and other governmental departments) partic-
ipates in the policing process; and
• Policing for the community – the degree to which particular com-
munity interests are represented and responded to by police.4

Who is policing whom, and why, is central to these distinctions.
These questions are also at the heart of the present discussion, as elabo-
rated below.
III COMMUNITY AS THE ANSWER
The Red Cross Report views ‘community’ favourably and as part of
the answer to ongoing criminality.5 It recommends the use of prisons as
a last resort, drastically reducing the number of people sent to prison,
and using the financial savings from this for community development in
precisely those neighbourhoods and communities that are the source of
most of those ending up in our prisons. The notion of justice reinvest-
ment captures this dynamic. In other words, stop spending so much on
expensive facets of criminal justice, that tend to do more damage than
good, and start spending more on prevention and rehabilitation. Instead
of building prisons, the focus is on rebuilding communities. Instead of
bricks and mortar, attention is given to people and communities. Most
4. Chris Cunneen and Rob White, Juvenile Justice: Youth and Crime in Australia (Oxford
University Press, 1st ed, 1995) 212.
5. Red Cross Report, above n 1.
prisoners return to the same communities of which they were original-
ly a part. Bolstering job prospects, providing quality support services,
ensuring that people have a roof over their heads, engaging locals in
positive community activities – these are the kinds of things that justice
reinvestment suggests we spend money on.
Indigenous people, young and old, male and female, are heavily
over-represented in Australian criminal justice systems, particularly in
the harshest points of these systems such as prisons and youth detention
centres.6 Unsurprisingly, justice reinvestment appears as an attractive
alternative to the present status quo. It is interpreted by proponents as
an essentially community-centred approach that offers hope for dimin-
ishing the number of Indigenous people entrenched within the criminal
justice system.7 Among its key elements are the diversion of funds from
prisons to community programs, services and activities that are aimed
at addressing the underlying causes of crime in specific communities,
enhanced opportunities for community involvement and ownership of
the solutions, and provision for offenders to be accountable directly to
their community.8
In Australia, the favoured justice reinvestment model is based on
the idea of redirecting money from prisons and youth detention centres
to communities that feed directly into the prisons, rather than redirect
money from prisons to individuals needing drug rehabilitation and who
are nonviolent (as in some American projects).9 Preliminary analysis has
been undertaken of areas that detainees come from and how best to
redirect funds back into those communities.10 Rather than a general pan-
6. Chris Cunneen et al, Penal Culture and Hyperincarceration: The Revival of the Prison
(Ashgate, 2013); Rob White, ‘Indigenous Young People and Hyperincarceration in
Australia’ (2015) 15 Youth Justice 256.
7. David Brown et al, Justice Reinvestment: Winding Back Imprisonment (Palgrave
Macmillan, 2016).
8. Mick Gooda, ‘Justice Reinvestment: A New Strategy to Address Family Violence’ (Speech
delivered at the National Family Violence Prevention Forum AIATSIS and CDFVR, Mackay
Queensland, 19 May 2010).
9. Nancy LaVigne et al, ‘Justice Reinvestment Initiative State Assessment Report’ (Report,
Urban Institute and Bureau of Justice Assistance, US Department of Justice, January
2014).
10. See, eg, Gooda, above n 8; Troy Allard, April Chrzanowski and Anna Stewart, ‘Targeting
Crime Preventing: Identifying Communities that Generate Chronic and Costly
Offenders’ (Research and Public Policy Series No 123, Australian Institute of Criminology,
July 2013); Jacqueline McKenzie, ‘Insights from the Coalface: The Value of Justice
Reinvestment for Young Australians’ (Report, Australian Youth Affairs Coalition, 2013).
4342
Court of ConscienceJustice Investment and
Rob White

‘Stop spending so much on
expensive facets of criminal
justice, that tend to do more
damage than good, and start
spending more on prevention
and rehabilitation. Instead of
building prisons, the focus is
on rebuilding communities.
Instead of bricks and mortar,
attention is given to people
and communities … these are
the kinds of things that justice
reinvestment suggests we
spend money on.’
acea or response to mass incarceration, as in the United States, justice
reinvestment is seen in Australia to be most relevant to select groups – in
particular, the over-representation rates of Indigenous people continue
to be untenable. In light of this, justice reinvestment approaches have
garnered significant political support within Indigenous communities
and advocacy bodies precisely because of the dire nature of the con-
temporary policies and practices affecting Indigenous people across the
country.11
However, by focusing the spotlight on specific communities in this
way (that is, in a manner that may portray them primarily as dysfunc-
tional and deviant) the door is open for further stigmatisation of both
community and individuals within them, and for coercive ‘outside’ inter-
vention in these same communities. Justice reinvestment as an ideal and
concrete practice thus carries with it certain hopes but also potential
dangers. In the context of tight government budgets, for instance, while
the need for community development is growing rapidly (as indicated
by unemployment rates amongst the young), the resources for this are
shrinking (due to government priorities). Without dedicated job creation
strategies and efforts to improve overall educational outcomes, the suc-
cess of justice reinvestment seems less than assured, although the bene-
fits may still be felt at the local level in some places and to some extent.12
The issue here is not only about money (how much, and how and
where it is spent). It is also about who makes decisions affecting what
happens at the local community level. The moral voice of (and for) a com-
munity is contestable and is intrinsically interwoven into existing power
relations. This reality is highlighted by the Northern Territory interven-
tion, which is ongoing. It is part of the continuing story of the contem-
porary extension of colonial ideology, policy and practice.
IV COMMUNITY AS THE PROBLEM
In June 2007, the federal government staged a massive intervention
in the Northern Territory ostensibly designed to protect Indigenous
children from sexual abuse. The government used the 'Little Children
11. Gooda, above n 8; Aboriginal and Torres Strait Islander Social Justice Commissioner,
‘Social Justice Report 2009’ (Report, Australian Human Rights Commission, 2009)
9–56.
12. See Brown et al, above n 7.
4544
Rob White

are Sacred Report' as the justification for both taking action and for the
specific sort of action taken.13 Subsequent legislation removed the permit
system for access to Indigenous land; abolished government funded
Community Development Employment Projects; quarantined 50 per
cent of welfare payments; suspended the Racial Discrimination Act 1975
(Cth); expected Indigenous people to lease property to the government
in return for basic services; compulsorily acquired Indigenous land;
and subjected Indigenous children to mandatory health checks without
consulting their parents.14 The measures also included the deployment
of additional police to affected communities, new restrictions on alco-
hol and kava, and the removal of customary law and cultural practice
considerations from bail applications and sentencing within criminal
proceedings.
The justification for such draconian and dramatic legal intervention
was child abuse, yet the words ‘child’ or ‘children’ never appear in the
actual legislation. As one commentator put it:
This legislation does nothing for children, nothing for Indigenous disad-
vantage, nothing to actually stop child abuse. It takes control away from
Indigenous communities. It allows government bureaucrats to force
themselves into our boardrooms. It takes over our land. It takes away our
ability to have a say on who can come onto our freehold title land. It places
bureaucrats in charge of our lives.15
The net result of the intervention, introduced under the cover of
‘what is best for the community’, has been significant deterioration in
the health and wellbeing of the individuals, groups and communities
subjected to its laws and policies (as measured by indicators such as
13. Rex Wild and Patricia Anderson, ‘Ampe Akelyernemane Meke Mekarle “Little Children
are Sacred”: Report of the Northern Territory Board of Inquiry into the Protection
of Aboriginal Children from Sexual Abuse’ (Report, Northern Territory Government,
15 June 2007); see James Roffee, ‘Rhetoric, Aboriginal Australians and the Northern
Territory Intervention: A Socio-Legal Investigation into Pre-legislative Argumentation’
(2016) 5 International Journal for Crime, Justice and Social Democracy 131.
14. Northern Territory National Emergency Response Act 2007 (Cth); Social Security and
Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth); Families,
Community Service and Indigenous Affairs and Other Legislation Amendment (Northern
Territory National Emergency Response and Other Measures) Act 2007 (Cth).
15. Muriel Bamblett of the Secretariat of Aboriginal and Islander Child Care, quoted in
Sarah Maddison, ‘Australia: Indigenous Autonomy Matters’ (2009) 52 Development 483,
485.
suicide rates, school attendance, number of children put into out-of-
home-care, and incarceration rates).16
The type of thinking that underpins the intervention is also evi-
dent in recent comments by former Prime Minister Tony Abbott, who
declared that in North Queensland 10-year-old sex offenders should be
arrested, charged and forced into the juvenile justice system.17 Such
statements completely ignore that these ‘offenders’ are simultaneously
‘victims’; that age is a crucial developmental and competency indicator,
and therefore children require supportive rather than punitive meas-
ures; and that taking the young out of their community, a perennial issue
for Indigenous people, is not a solution since it does not deal with issues
in the community that produce the problem in the first place. If such
advice were followed, it would mirror the punitive and disempowering
strategy of the intervention.
V AMBIGUITIES PERTAINING TO COMMUNITY
Notably, a number of Indigenous leaders nonetheless endorsed or at
least partially supported the approach of the intervention.18 However,
to understand this, it is essential to once again return to the notion of
‘community’ and how this is interpreted. Specifically, there are a couple
of concepts at odds in this instance:
• The need to intervene in relation to serious community issues is
conflated with the exercise of coercion over everyone within these
communities. This is not empowerment of people, but imposition
of power over people; and
• The consequence of coercive intervention is not to the benefit, but
16. See Jens Korff, Northern Territory Emergency Response (NTER) – ‘The Intervention’
(9 August 2016) Creative Spirits <https://www.creativespirits.info/aboriginalculture/
politics/northern-territory-emergency-response-intervention>; Chris Cunneen and
Simone Rowe, ‘Decolonising Indigenous Victimisation’ in Dean Wilson and Stuart Ross
(eds), Crime, Victims and Policy: International Contexts, Local Experiences (Palgrave
Macmillan, 2015).
17. See ‘Tony Abbott reacts to Smallbone report saying 10-year-old sex offenders should
be jailed’, The Courier-Mail (online), 21 March 2016 <http://www.couriermail.com.
au/news/queensland/tony-abbott-reacts-to-smallbone-report-saying-10yearold-
sex-offenders-should-be-jailed/news-story/885a1bc5c7c8942a7b029895866983
5b>.
18. See Maddison, above n 15, 485, 487.
4746
Rob White

the detriment, of these communities. This is not meeting needs,
but creating hardships.
In part, the problems stem from the original construction of the
intervention itself and what was fundamentally ignored – namely, the
community.
Consider, for example, the very first recommendation of the Little
Children are Sacred Report:
That Aboriginal child sexual abuse in the Northern Territory be designat-
ed as an issue of urgent national significance by both the Australian and
Northern Territory Governments, and both governments immediately es-
tablish a collaborative partnership with a Memorandum of Understanding
to specifically address the protection of Aboriginal children from sexual
abuse. It is critical that both governments commit to genuine consultation with
Aboriginal people in designing initiatives for Aboriginal communities.19
Indeed, more generally, the recommended ‘rules of engagement’ be-
tween Australian governments and Indigenous peoples included a series
of important principles.20
• Principle One – Improve government service provision to Aboriginal
people
• Principle Two – Take language and cultural ‘world view’ seriously
• Principle Three – Engage in effective and ongoing consultation and
engagement with Aboriginal Communities
• Principle Four – Maintain a local focus and recognise diversity
• Principle Five – Support community-based and community-owned
initiatives
• Principle Six – Recognise and respect Aboriginal law, and empower
and respect Aboriginal people.
• Principle Seven – Maintain balance in gender, family and group
representation
• Principle Eight – Provide adequate and ongoing support and
resources
19. Little Children are Sacred Report, above n 13, 22 (emphasis added).
20. Ibid 50–5 (emphasis added); See also Mick Gooda, ‘Social Justice Report 2007’ (Report
No 1/2008, Australian Human Rights Commission, 2007) 203 <social_justice/sj_report/
sjreport07/index.html>.
• Principle Nine – Commit to ongoing monitoring and evaluation of
programs
The intervention has confounded and contradicted these principles
at every turn. The policy has been described as ‘punitive, coercive and
racist’ and as the imposition of a set of measures on Indigenous people;
as such, it is contrary to the wishes of those who argue that ‘Indigenous
disadvantage can only be improved when Indigenous people are given
greater control over the decisions that impact on their daily lives’.21
VI CONCLUSION
The rethinking of justice in ways that include endorsements of
justice reinvestment (as well as restorative justice, diversion and related
concepts) is vital to changing systems that are fundamentally wrong and
unjust. The political dynamics underpinning how individuals and com-
munities considered ‘at risk’ are transformed into those considered ‘as
risk’, however, requires sensitivity to nuance and vigilance against impo-
sition. Positioning communities as the problem simultaneously involves
disavowal of historic and intergenerational effects of colonialism, and
the diminution of their rights.
Justice reinvestment offers the promise of constructive, positive
building of community capacity. Yet, in practice, depending upon how
it is conceptualised and implemented, it could be interpreted as licence
to increase social control over already vulnerable communities (that is,
policing of the community). As with any state intervention, context and
the actual content of the intervention provides the marker of whether or
not justice is achieved or further injustice committed.
21. Aden Ridgeway, ‘Mabo Ten Years On – Small Step or Giant Leap’ in Hannah McGlade
(ed), Treaty: Let’s Get It Right! (Aboriginal Studies Press, 2003) 185, 188.
4948
Rob White

Please Give Us Answers’
Indigenous Incarceration
in Australia: Strategies for
Urgent Reform
‘
Nicholas Carey*
My granddaughter died in a cell begging for help. Please give us answers.’
– Carol Roe, grandmother of 22-year-old Yamatji woman, Ms Dhu.
Ms Dhu died from septicaemia and pneumonia on 4 August 2014
whilst in police custody. She had been arrested and taken to South
Hedland police station, north of Perth, Western Australia, less than two
days earlier.1 Her crime was owing $3622 in unpaid fines. A coronial
inquest into Ms Dhu’s death was presented with security camera footage
of a limp Ms Dhu being dragged along the floor of her cell by police. She
was then loaded into the back of a Land Cruiser to be driven to hospital
for the third time during the 45 hours she was in custody.2 Shortly be-
fore Ms Dhu went into cardiac arrest, a nurse was told by police officers
that they believed she ‘was faking it’.3 Ms Dhu died soon after. Coroner
Ros Fogliani initially refused a request by Ms Dhu’s family to release the
footage.4 Despite police resistance,5 sustained campaigning from the
family and a successful motion in the Senate have called for its release.6
* In a previous life, Nicholas was a professional classical musician, holding a Bachelor of
Music (First Class Honours) from the Sydney Conservatorium of Music and performing
regularly with the Australian Opera and Ballet Orchestra. During his first career diver-
sion, Nicholas worked for a number of years as a green coffee buyer and operations
manager for a boutique coffee trader, travelling regularly to Ethiopia, Kenya and Brazil
to buy and import specialty coffee from some of world’s best producers. He is now
a second year Juris Doctor student at the University of New South Wales. A previous
version of this article was published as a blog post on the Amnesty International’s NSW
Legal Network website.
1. Calla Wahlquist, ‘Ms Dhu Death in Custody Inquest Hears Details of the
Last 48 Hours of Her Life’, Guardian Australia (online), 23 November
2015 <http://www.theguardian.com/australia-news/2015/nov/23/
ms-dhu-death-in-custody-inquest-hears-details-of-the-last-48-hours-of-her-life>.
2. Laura Gartry and Rebecca Trigger, ‘Police Thought Dying Aboriginal Woman Ms Dhu was
Faking It, Coronial Inquest Told’, ABC News (online), 23 November 2015 <http://www.
abc.net.au/news/2015-11-23/inquest-into-death-of-dhu-in-police-custody/6963244>.
3. Ibid.
4. Calla Wahlquist, ‘Coroner Rules Footage of Ms Dhu May Not Be Released,
Against Family’s Wishes’, Guardian Australia (online), 25 March 2016
<https://www.theguardian.com/australia-news/2016/mar/25/
coroner-rules-footage-of-ms-dhu-may-not-be-released-against-familys-wishes>.
5. Australian Associated Press, ‘WA Police Chief Karl O’Callaghan Backs
Coroner Decision on Ms Dhu Video’, Perth Now (online), 8 September
2016 <http://www.perthnow.com.au/news/western-australia/wa-po-
lice-chief-karl-ocallaghan-backs-coroner-decision-on-ms-dhu-video/
news-story/880cfac2e40d41a22ea37f3cceca9088>.
6. Sebastian Neuweiler, ‘Senate Supports Push for Ms Dhu Footage Release’, ABC
‘
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