‘Vulnerability and the Law’ - UNSW

University of New South Wales Law Journal Launch of Thematic Issue on ‘Vulnerability and the Law’ Vol 41(3) 2018

27 September 2018

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Acknowledgements

I pay my respects to the Gadigal people of the Eora nation and to their elders past and present—as well as to emerging leaders.
Thank you to Lachlan Peake and Veronica Sebesfi for the invitation to speak tonight.

Can I also acknowledge:

• Rosemary Kayess, I am so proud to say a member of the UN Committee that oversights the Convention on the Rights of Persons with Disabilities and a highly valued member of the Advisory Committee for the Australian Law Reform Commission inquiry on Equality, Capacity and Disability in Commonwealth Law (August 2014)
• Professor Andrew Lynch, Head of School
• Scott Farrell and Daniel Creasey, Head of Pro Bono and Community Impact at King & Wood Mallesons

Rosemary and I are probably the mid-wives tonight in this issue of the UNSW Law Journal and it’s a great honour.

There is a stellar line-up of authors in this issue, many of whom I know, but with a blind-refereeing process you find all of these other people, new and emerging scholars, whose work you don’t know already. And the fact that the journal, like the Harvard Law Review, is entirely a student product, makes it a very special genre, and you are in fine company.

The hardcopy journal arrived two days ago. The last page is numbered 1043, which was a bit alarming, but I had been sent an electronic version where you tend not to notice such things, at least at first, especially when downloaded on an ipad into ibooks!

I have been given 10 minutes. If there were indeed 1000 plus pages, which means 1.73 pages per second. But it is in fact only 423 pages, which gives me 1.41 pages per second.

My interest in the topic of ‘vulnerability’

The subject of vulnerability has been close to my thinking for many years. My doctoral work took me into the law concerning limitations on testamentary freedom—the right to leave property by will. I ambled far and wide over the centuries and some of the key issues were ones of legal capacity. Married women, for example, were regarded as vulnerable. The denial to her of testamentary capacity and other rights in relation to property were regarded as ‘for her protection and benefit’, as William Blackstone wrote. Married women were denied testamentary power in relation to real property because it was regarded they might be overborne by their husbands. The woman’s capacity was denied, rather than the husband’s power checked.

My work at the Australian Law Reform Commission on the disability inquiry, amplified in the Elder Abuse inquiry, saw me (and the ALRC teams) grappling with ideas of autonomy and safeguarding; the idea of supporting people in their decision-making sensitive to their will and preferences.

But I remembered my earlier work which heightened my sensitivity to people being denied things because of an over-protective response. A classic example was how the Electoral Act contains provisions about disqualifying people of ‘unsound mind’ from enrolling and voting. But it was really about the administrative inconvenience of fining people for not having voted. So you deny the person the right of citizenship for administrative convenience? There may be reasons for forgiving the failure to vote, but deny them the right to be on the roll? It is a rhetorical question. We answered it in the way you would expect.

AHRC’s work

One thing that struck me in quickly reviewing the articles in this issue of the journal is the substantial crossover between the content areas of those articles and the day to day work of the Australian Human Rights Commission; To pick a handful of examples to illustrate:

• The participation and representation of Aboriginal and Torres Strait Islander peoples in the Australian polity (Shireen Morris)—this is an issue that successive Social Justice Commissioners have focused on for many years. Indeed, all of them got together to make a joint submission to the Joint Select Committee on Constitutional Recognition—that is every Social Justice Commissioner over 25 years.
• The administration of social security law, including the movement to greater conditionality that particularly target vulnerable groups (Terry Carney)—successive Social Justice Commissioners have considered the human rights implications of welfare cards and schemes, such as the Community Development Program, on the human rights of Aboriginal and Torres Strait Islander peoples, as a mechanism for ‘managing’ vulnerability and disadvantage, as opposed to overcoming it through community development initiatives.
• The protection of women against gendered hate speech (Tanya D’Souza, Laura Griffin, Nicole Shackleton and Danielle Walt)—this is an issue that has constantly been raised with our Sex Discrimination Commissioner and on which she spoke before the UN Committee on the Elimination of Discrimination Against Women in July this year.

Just this month, the Sex Discrimination Commissioner Kate Jenkins has also released the results of the latest in the Commission’s 5-yearly prevalence surveys on sexual harassment in the workplace. There has been a significant increase in the self-reporting of sexual harassment across the board, as well as an increase in the number of people who say that, when they witness such harassment, they are unsure of what to do. These issues will be explored in more detail by the Commission in our current National Inquiry into Sexual Harassment in Australian Workplaces, which will take place over the next 12 months.

Articles about forced mental health interventions under civil mental health laws (Fleur Beupert) and consumer protection laws in the context of people with cognitive disabilities (Yvette Maker, Jeannie Marie Paterson, Anna Arstein-Kerslake, Bernadette McSherry and Lisa Brophy) also raise important issues about the rights set out in the Convention on the Rights of Persons with Disabilities, especially relating to the truly difficult and contentious issue of substituted versus supported decision making and how to make this work in practice. From my work leading the Disability inquiry and Elder Abuse inquiry I know theoretically and practically vexed these issues are.

In the few minutes remaining, I thought I would look at the idea of vulnerability and put forward some thoughts about this theme that is the common narrative between these diverse issues in this issue of the journal, and how it connects to human rights.

I was intrigued in the comments in the editorial and foreword about the concept of ‘universal vulnerability’ drawn particularly from the writing and thoughts of Martha Fineman. Some of this theoretical discussion, I have to say, is what I would describe as ‘hard sums’. Fascinating indeed, and sophisticated, but where it really matters is in the law of the individual whose human rights are under challenge—the individual who is the principal subject of the Universal Declaration of Human Rights, about to celebrate its 70th anniversary in December this year.

As the Editor, Veronica Sebesfi, describes Fineman’s writing, ‘vulnerability is something that is inherent, constant and shared by all of humanity’:

She rejects the idea that an individual or group can be ‘considered more or less vulnerable … or specifically or especially vulnerable’, and instead focuses on how institutions can engender differing levels of resilience, and how inherent vulnerability may be revealed by particular situations.

In his foreword, Professor Jonathan Herring adds to this that, if vulnerability is an inevitable aspect of the human condition, then it must:

cause us to question the weight that the law attaches to autonomy, self-sufficiency and individualized conceptions of human rights. Supporters of universal vulnerability claim that vulnerability is an inherent part of being human.

I must say that have a few competing reactions to this concept.

This conception of vulnerability reminds me of the famous language of the Universal Declaration of Human Rights. Article 1 reminds encapsulates that, beneath our clothes, despite our geographic location or where we are born, we are ‘all born free and equal in dignity and rights’.

Perhaps another way of framing that would be to say that we are all born equal in vulnerability.

The opening words of each article of the Universal Declaration reiterate the universality of human rights:
Everyone is entitled to …
Everyone has the right to …
No one shall be (subject to torture) …
All are equal before the law …
And so on.

But in article 29(1) the Declaration concludes with the corollary of this: that everyone is also responsible for human rights: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’, it reads.

Is the concept of ‘universal vulnerability’ a modern re-telling of the promise to all humanity in Article 1 of the UDHR?

However, for me there is a competing question—or questions. Namely, how this conception of vulnerability accounts for issues such as:

• Systemic discrimination
• Historically derived marginalisation as experienced by our Indigenous peoples
• Cultural and racial bias that has been embedded in the mainstream cultures of many western nations for people of ethnic and minority backgrounds
• The cultural biases experienced by people with disability about their ‘capacity’ to be independent, make decisions and so forth—even to vote.

Can the concept of ‘universal vulnerability’ appropriately account for the contemporary experiences of Aboriginal people in the care and protection system?

Can it be that resilience among Aboriginal people explains the disproportionate engagement with this system, and the criminal justice system, for the past forty years?

How do we relate it to historical antecedents such as the experience of the stolen generations? This was a deliberate process of separation of Indigenous children from their families where they were of mixed ethnic origin.

Would it be appropriate to re-frame the impact of these deliberate actions by the state as resulting in an impairment of the resilience of the ‘stolen generations’ to respond to the ‘universal vulnerability’ that we all share?

Can we talk of universalism when the treatment experienced, in this case by our first nations, is so different from that of everyone else?

Frankly, this seems to give insufficient weight to the significant fact that none of the rest of us have ever faced this type of trauma. Building resilience is a critical element of theory around post-colonial healing processes, but it is but part of the picture.

Which brings me back to the articles in the journal. Shireen Morris makes it explicit in her article that the ongoing problem faced by Aboriginal and Torres Strait Islander peoples is a structural exclusion from decision-making processes and a lack of meaningful participation: a ‘right of rights’ as she notes in her article.

And Terry Carney’s article on social security clients highlights a challenge for this concept of universal vulnerability: namely, its misuse to justify even more intrusive, conditional forms of welfare support that we have seem with cashless welfare cards—the attempt to use the safety net of welfare to ‘control’ problematic behaviours. Often this is done without consent or engaged participation in the design phase, and without addressing the broader social context in which those behaviours manifest. Even though its motivation may be broadly described as ‘benevolent’; or, in the language that people in the disability sectors would know well, in their ‘best interests’.

This year I am giving a series of speeches reflecting on the 70th anniversary of the UDHR in which I am urging people to take a broader perspective when they think about human rights and their place in contemporary Australia.

I think we have a long way to go to build a culture of ‘rights-mindedness’ in our community as well as a stronger sense of civic duty from public servants about looking at policy and legal development through the lens of human rights.

Our framework for protecting human rights in Australia is also rather messy. If I look at the legislation that guides the operation of the Australian Human Rights Commission, for example, it is riddled with holes and rabbit warrens—which intrigues me as a legal historian. There is a distinct lack of protection for some issues. There is inconsistency between the meaning of ‘unlawful discrimination’ in the four discrimination laws and extremely complex differences in legal standards, which frankly can only be explained by the different point in time at which each piece of legislation was introduced.

In other areas, such as complaints brought under the AHRC Act itself, including for ‘discrimination’ in employment, there is an unsatisfactory process whereby complaints can be conciliated, but if they are not resolved then the complainant has no legal access to the courts. In legal terms they are ‘on a hiding to nothing’, so where does that leave the Human Rights Commission in the court of public opinion?

The analogy I would use is that the Commission is like a house that has had several rooms added over a 35+ year period without any thought as to the impact on the overall design or architecture of the place. The architecture of the second iteration of the Commission, in the 1986 legislation, was framed around the Australian Bill of Rights Bill, which never got through the Senate. So the ICCPR is implemented in domestic law in a rather invisible way, through complaints that can be made through the AHRC Act itself, but without any recourse to the courts.

So there is much that can be done to improve the effectiveness of the domestic human rights architecture and to give us the chance to live up to the famous words of the UDHR. Bringing it back to the theme of this edition of the journal—our current human rights infrastructure does not include all the necessary tools in our kitbag to address vulnerability.

This year I am doing my best to ‘channel’ Eleanor Roosevelt, the chair of the UN Commission on Human Rights and the drafting committee of the Universal Declaration. A woman of similar vintage, and of even more commanding stature (she was nearly 6 ft, in old coinage, and would have been welcome in any netball team!), but with much better command of French than I, she worked a wonderful feat in herding the ‘cats’ of the drafting committee to the adoption of the Declaration by the General Assembly in December 1948.

As one of the midwives, I commend the journal to you. The contributions within it are insightful. They will no doubt provoke deep thought and discussion about how we can go about the endeavor of ensuring the highest level of enjoyment of human rights for all people.

Thank you