Griffith Journal of Law & Human Dignity

Reflecting on Wrongful Convictions of Women in Australia: Definitions, Debates and Data

Robyn Blewer, Dr. Celine van Golde — Wed, 13 Mar 2024 00:00:00 -0700

The quashing of Kathleen Folbigg’s convictions in June 2023 caused many to reflect upon the way in which Australian criminal justice systems might judge women. The growing body of research into wrongful convictions of women overseas is developing an understanding of how and why the criminal justice process often fails to consider the experiences of women, incarcerates them – and makes it more difficult for their wrongful convictions to be uncovered and corrected. This article considers that research and applies its findings to known cases of wrongful convictions of women in Australia. The exploratory analysis offered in this article highlights possibilities for further research that will develop a more precise understanding of prosecution processes in Australia, the risk factors for wrongful conviction of women, and the barriers to uncovering wrongful convictions. Understanding these issues will help prevent wrongful convictions and improve pathways to justice.

The Public Morals Exception: A Failing by the Human Rights Committee and a Threat to International Human Rights Law

Hannah James — Wed, 13 Mar 2024 00:00:00 -0700

By way of its construction, the public morals exception located in the International Covenant on Civil and Political Rights is a function of international law which allows for restrictions on the most fundamental of our human rights. However, despite these implications, this justifying ground remains severely understudied and unexplained. This paper seeks to discuss the jurisprudence which surrounds the public morals exception from two angles: first, the requirements for ‘legitimacy’ of such exceptions and second, the broader interpretation of what is meant by the term ‘public morals’ in international human rights law. After analysing the work of the Human Rights Committee on these two concepts, the paper asserts that the level of clarity which has been provided by the body in terms of its discussions on the requirements of human rights exceptions has not been reflected in the Committee’s limited guidance concerning the larger concept of public morality — a complex yet vital part of the discussion surrounding the public morals exception. Due to this lack of clarity by the Human Rights Committee, the paper finds that the international recognition of human rights faces two major issues — a vacuous idea of ‘morality’ which often allows for excessive State discretion, and an overwhelming number of claims under the public morals exception which are clearly unlawful.

Beyond Bars: Toward Abolitionist Justice In Australia

Debbie Kilroy — Wed, 13 Mar 2024 00:00:00 -0700

This narrative examines the prevailing carceral system in Australia, with a specific focus on Queensland, Victoria, and the Northern Territory. Drawing on firsthand experiences and empirical data, the author challenges the efficacy of punitive measures and the proliferation of prisons as responses to social issues. Through case studies such as the Dame Phyllis Frost Centre in Victoria and Don Dale in the Northern Territory, the narrative underscores the disproportionate impact of incarceration on marginalised communities, particularly First Nations peoples and women. By interrogating the intersections of race, gender, and class within the criminal justice system, the narrative advocates for a paradigm shift towards abolitionist approaches. It explores alternatives to imprisonment, such as Participatory Defence, emphasising community empowerment and restorative justice principles. Ultimately, this narrative calls upon legal professionals and policymakers to engage in transformative justice practices and envision a future devoid of incarceration and punitive systems.

Strategic Litigation and Racism in Healthcare

George Newhouse, Ariane Dozer, Isabel Janssen, Nathalie MacGregor — Wed, 13 Mar 2024 00:00:00 -0700

In Australia, until recently, the use of strategic litigation to achieve broad societal change has not been widely employed, due to historical, constitutional, social, and cultural factors; however, the landscape is changing. This article traces a ground-breaking Australian case, the Inquest into the death of Wiradjuri woman, Naomi Williams, which was run as part of a broader campaign to seek justice for First Nations people affected by racial bias in the healthcare system. The tragic circumstances of the case reignited a national conversation on health inequality through the judicial finding of ‘implicit racial bias’ and served as a platform for Aboriginal communities, organisations, and academics to demand new ways forward, notably by mandating culturally safe care — demands which are being slowly implemented. The authors demonstrate, through a detailed breakdown, how strategic litigation theory functions in practice, showing that litigation is most effective when conducted in conjunction with public advocacy within a multi-faceted campaign for change.