Q & A with Dean Strang

On 4 October 2017, Dean Strang visited UQ and was hosted by the TCB School of Law.  Dean Strang is probably best known as one of Steven Avery’s attorneys in the murder trial made famous by the cult classic, Making a Murderer.  In a candid and conversational Q&A, UQ students had the chance to put to Dean burning questions about the hit documentary and gain insight into his life as a criminal defence lawyer.

For those not familiar with the case, Steven Avery was wrongfully convicted of rape and attempted murder in 1985.  After serving 18 years in prison, Avery had his conviction overturned and upon his release in 2003 filed a multi-million-dollar civil lawsuit against Manitowoc County for wrongful conviction and imprisonment.   

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However, in 2005, Avery was arrested and tried for the murder of Teresa Halbach.  This is where Dean entered Avery’s life as one of his attorneys.  It is also where the Netflix documentary started to follow Avery’s life in great detail. 

Avery was ultimately convicted of murder and remains behind bars.  Only a day before the interview, Avery had applied for a retrial though leave was refused.

The question was put to Dean whether he thought the documentary gave a fair portrayal of the 2007 murder trial.  His answer was that, all things considered, he thought it was fair.  Admittedly, editorial decisions have to be made when condensing a 6-week trial to 2 or 3 hours of footage, but he thought that the documentary had given an honest and candid representation of the different characters in the courtroom. 

Dean, by his own account, never aspired to be a lawyer, and somewhat stumbled into practice after deciding that a career as a political cartoonist was not a sensible vocation.  At the time, legal studies had an almost guaranteed job at the end and for Dean it was a way of putting off questions about what he was going to do in life. Initially a civil lawyer dealing with pensions and corporate law, Dean ‘fell in with’ a group of public defenders, though his interaction with criminal law was initially on the prosecution side.  At the end of 10 apparently disastrous months as a prosecutor, he took a job as a public defender and has remained in defence ever since.  He reflected positively on his choice to begin as a prosecutor and recommended this to those seeking a career in criminal justice.

In reflecting on the changes to the criminal justice system that he has witnessed during his career, Dean highlighted two major changes.  The first was DNA evidence.  While acknowledging that DNA evidence is only conclusive in a small number of cases (ie it does not speak to the presence or absence of consent in sexual assault cases, nor does it have any bearing on ‘pen cases’ such as fraud), Dean felt that this was an incredibly important development and one that had the potential to revolutionise criminal law.  The second was the prevalence of audio and video recording of police interviews.  Dean lamented the reluctance of certain US state police departments to adopting continuous recording of police interviews, and felt that this type of practice was vital to the proper working of the justice system.

Discussion moved to why the public is currently fascinated by true crime stories like ‘Making a Murderer’ and ‘Serial’.  According to Dean, the public seems to be less enthralled by the true crime and is more interested by the perceived injustices.  As Dean pointed out, the younger generations access media in a very different way to those who grew up before the advent of the internet and this influences how news stories are consumed and analysed.  While true crime is by no means a new medium, the public seems more and more interested with how the process works rather than getting a solid conclusion from a television show.  The public seems to be content to be given an equivocal answer at the end of a story as long as the grey area of the case is investigated thoroughly on the way. 

Dean did, however, make the point that there is some danger in true crime becoming the subject of entertainment if the audiences forget that the ‘characters’ are really people.  On one level, if entertainment is just how we spend our free time, then learning about true crime is a reasonable exercise.  But if audiences are not asking questions, and get lost in the drama, then it starts becoming more of an impermissible intrusion into a very private traumatic event.  At the end of the day, the victim’s family never asked for any publicity of their private lives.

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It was clear throughout the interview that Dean is passionate about justice.  When asked what compelled him to take on Avery’s case, he answered that it was partly because a defence lawyer should be able to look at a person who has fallen from public favour, and want to defend them.  Dean explained that at the time of Avery’s arrest for the murder charge, there was a general feeling of disgust because in the public’s eyes, this was a man who had been given a second chance at life who had thrown it away and committed a heinous crime.  This is the very type of person who needs a good defence lawyer.  Dean did admit that he had some personal incentive for taking on the case, having spent 5 years practicing in the federal sphere, he wanted to prove that he could walk into a state courtroom without tripping and making a fool of himself!

An audience member asked Dean whether he had ever represented a guilty client.  His response: yes, frequently.  However, he said that he was yet to be approached by a client who was open about their guilt but insisted on Dean working towards an acquittal.  According to Dean, many of his ‘guilty’ clients merely wanted the best sentencing option, or to know their chances of obtaining a lower fine.  Dean said that there had been clients who appeared to be lying when asserting their innocence, but made the important point that it is not his role to be a judge, just to be a representative.  Indeed, where lawyers pre-judge their client’s guilt, they may themselves become an instrument of a wrongful conviction.

To conclude, Dean was asked what advice he would offer to law students.  His response gave great insight into Dean as a person and a professional.  He said it is important to hold on to our humanity and our humility.  This has obvious positive consequences for the legal profession and legal system more broadly, though it also benefits us as people.  Dean had reflected on the personal struggles he had witnessed colleagues suffer when grappling with some of the more draining aspects of criminal law work and said it was important to remember compassion, empathy and to look after one another.

 

International Criminal Court - future challenges  

ADDRESS TO JUSTICE AND LAW SOCIETY 20 OCTOBER 2017

Judge P.E. Smith[1]

_____________________________________________________________________

Introduction

  [1]        The Rome Statute of the International Criminal Court (the Rome Statute) came into force on 17 July 1998, with the Court beginning its operations on 1 July 2002 – some 15 years ago now.  In this paper I would like to examine how effective the Court has been and of recent challenges to its future. 

Overview of the ICC

  [2]        Firstly, I will discuss a brief overview of the International Criminal Court. 

  [3]        Calls for the establishment of an International Criminal Court have been made for over 100 years. Such a notion was discussed at the first international peace conference in The Hague in 1899. Despite such calls, international criminal tribunals were merely ad hoc arrangements. For example the Nuremberg and Tokyo Tribunals established after the Second World War.   

  [4]        Moving forward from there other ad hoc tribunals has been established dealing with war crimes including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Indeed the occurrence of many war crimes in Yugoslavia and Rwanda in the 1990s “reignited” the push for a permanent international criminal court.    

  [5]        In July 1998 after a five week diplomatic conference in Rome, the international community finally agreed to establish a permanent International Criminal Court (ICC). The new Court was tasked with the responsibility of ensuring criminal liability for serious violations of international humanitarian law and other such crimes.  As to the exercise of jurisdiction, firstly, the Court has jurisdiction when the United Nations Security Council (UNSC) refers a situation to the Court.[2]  Secondly, the Court can exercise jurisdiction where a referral is made by a State party.[3]  Thirdly, the Court can exercise jurisdiction where the prosecutor refers a matter to the Court.  The prosecutor must obtain the approval of the pre-trial chamber to proceed with the prosecution.[4] 

  [6]        The Court’s jurisdiction arises on a number of circumstances.[5]  Firstly, it has jurisdiction to deal with the crime of genocide.[6]  Secondly, it has jurisdiction to deal with crimes against humanity.  Thirdly, it has jurisdiction to deal with crimes of aggression.

  [7]        Turning to its jurisdiction to deal with crimes against humanity, it is to be noted that Article 7 of the Rome Statute sets out a list of these crimes such as murder, extermination, enslavement, deportation, deprivation of liberty, torture, rape, persecution, apartheid or other inhumane acts.  It is important to note that Article 7(1) does not make reference to any requirement that an armed conflict exist.  However it must be borne in mind that Article 7(1) of the Rome Statute requires that the relevant act or acts be “committed as part of a widespread or systematic attack directly against any civilian population with knowledge of the attack.” 

  [8]        As to war crimes they are constituted by the following: 

(a)           Grave breaches of the 1949 Geneva Conventions in respect of protected persons and property including wilful killing, torture, wilfully causing great suffering or serious injury, extensive destruction of property, compelling a POW to serve in armed forces, depriving a POW or protected person of a fair trial, unlawful deprivation in taking of hostages.[7] 

(b)           Other serious violations of the law and customs applicable to international armed conflict.[8] 

  [9]        It is to be noted that the threshold jurisdiction is that the war crime must be committed as part of a plan or policy or as part of a large scale commission of such crimes.[9] 

How has the ICC gone[10]

[10]        It is firstly to be noted that the budget for the ICC is extensive – €141.6 million in 2017, employing some 800 staff.  The USA is still not a party to the Rome Statute, nor is it likely to become one. Russia withdrew in 2016 after the UN General Assembly condemned its occupation of the Crimea.

[11]        Over the last 15 years – the Office of the Prosecutor has opened investigations into 10 situations: 

1.             Two in the Central African Republic;

2.             One in the Côte d'Ivoire;

3.             One in Darfur, Sudan;

4.             One in the Democratic Republic of the Congo;

5.             One in Georgia, Kenya;

6.             One in Libya;

7.             One in Mali; and

8.             One in Uganda.

[12]        As at 17 August 2017, 31 arrest warrants had been issued.  14 had been implemented, and three withdrawn as a result of the death of the suspects.  Presently six persons are in custody, 15 suspects are at large and nine are not in custody. 

[13]        25 cases all up have been brought before the Court.  Five are in the trial stages as follows: 

1.             Prosecutor v Ongwen – Uganda – trial commenced 6 December 2016 

2.             Prosecutor v Netaganda – Congo – trial commenced 2 September 2015

3.             Prosecutor v Nourain – Darfur – not yet commenced

4.             Prosecutor v Gbagbo & Goude - Côte d'Ivoire – trial commenced 28 January 2016

[14]        There have only been four convictions in 15 years: 

1.             Prosecutor v Lubanga Dyilo[11] – Congo – convicted on 14 March 2012 of committing war crimes by enlisting children under 15 to participate in hostilities.  Sentenced to 14 years imprisonment. 

2.             Prosecutor v Germain Katanga[12] – Congo – on 17 March 2014 found guilty of one crime against humanity and four war crimes.  Sentenced to 12 years imprisonment. 

3.             Prosecutor v Bemba Gombo[13] – Central African Republic – convicted on 21 March 2016 of two crimes against humanity and three war crimes.  He was sentenced to 18 years imprisonment.  This case is the subject of an appeal. 

4.             Prosecutor v Ahmad al-Mahdi[14] – Mali – convicted on 27 September 2016 of one count of war crimes.  He was sentenced to 9 years imprisonment. 

[15]        It may be seen there have been four convictions in 15 years.  11 other cases are in the pre-trial stage.  One man has been acquitted and four have had jurisdiction declined or charges withdrawn. 

[16]        The trials have tended to take a long time to finalise. The Lubanga Dyilo trial resulted in the accused spending 6 years in custody before finalisation. It was 3 years and 2 months between opening statements and finalisation. In the Katanga matter it was 4 years and 3 months between opening statements and finalisation; 3 years and 1 month in Ngudjolo,[15]  and 5 years and 4 months in the Bemba Gombo case.

[17]        Over and beyond the lack of cases and finalisation time, there has been criticism that the ICC is unfairly targeting African countries in its prosecution.  In its first 10 years, the ICC investigations and prosecutions have all concerned situations in Africa.  Indeed the Court issued warrants for two heads of state – Al Bashir and Kenyata.[16]  This has attracted criticism from some African countries that head of state immunity has been undermined.  Additionally, the ICC has declined to exercise jurisdiction in Venezuela and in respect of British troops in Iraq. 

[18]        In 2016 South Africa, Burundi and Gambia announced their decision to withdraw from the ICC.  Indeed, sections of the media have asked whether this might be the end for the ICC.[17]  At the African Union Summit held in February 2017, African leaders backed a “strategy of collective withdrawal”.

[19]        But the withdrawal process has been full of uncertainty.  

[20]        In March 2016 the Supreme Court of South Africa[18] considered the situation where ICC had issued 2 warrants for the arrest of President Al Bashir arising out of events if Darfur and elsewhere in Sudan which were alleged to be war crimes. In 2015 Al Bashir was in South Africa for an African Union meeting. South Africa refused to act on the arrest warrants on the basis the Al Bashir enjoyed head of state immunity. The court held that South Africa had acted unlawfully.

[21]        By late 2016 South Africa announced that it had withdrawn from the ICC.

[22]        However In February 2017 the High Court in Pretoria decided that the withdrawal was unconstitutional and invalid without the approval of the Parliament[19].

[23]        In March 2017, South Africa reversed its decision to withdraw as a result of the court ruling.

[24]        It is still highly possible South Africa will withdraw after parliamentary approval.  Gambia has also rescinded its decision to withdraw. 

[25]        The ICC held in July 2017 that South Africa had thereby acted contrary to the Rome Statute.  South Africa continued to argue that Al Bashir was immune from proceedings under customary international law[20]. However the court did not refer South Africa’s conduct to the UN assembly or to the UNSC.   

[26]        However, it is further to be noted that in August 2017, the Chief Justices of South Africa, Rwanda and Sierra Leone in a joint statement suggested that Africa was capable of having its own International Criminal Court.  

Conclusion

[27]        In conclusion, in more recent years it has been a turbulent time for the ICC.  The budget is high, there have been limited prosecutions. Those prosecutions that have taken place and have been very lengthy. 

[28]        One would have grave concerns for the future of the ICC if South Africa ultimately does withdraw with other African states as State parties. 

[29]        Any such withdrawal would leave Africa not the subject of the ICC’s jurisdiction which would be disastrous particularly when one bears in mind the fact that many of the more recent war crimes alleged are alleged to have occurred on the African continent.

[30]        The withdrawal of South African from the ICC could give rise to questions as to the legitimacy and ongoing future of the ICC.      

[31]        It would be a great shame if this occurred because the ICC provides an important protection for many in the modern world.

 

____________________________________________________________________________

Sources

[1]         Judge Administrator of the District Court of Queensland. Colonel in the Australian Army Legal Corps.

[2]         Article 13(b) of the Rome Statute and Chapter VII of the UN Charter 1948. 

[3]         Article 14 of the Rome Statute. 

[4]         Article 15 of the Rome Statute. 

[5]         Article 5 of the Rome Statute. 

[6]         Article 6 of the Rome Statute. 

[7]         Article 8(2)(a) of the Rome Statute. 

[8]         Article 8(2)(b) of the Rome Statute. 

[9]         Article 8(1) of the Rome Statute. 

[10]        The Court Today 17 August 2017 ICC-PIDS-TCT-01-084/17

[11]        Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06.

[12]        Prosecutor v Germain Katanga  ICC-01/04-01/07.

[13]        Prosecutor v Jean-Pierre Bemba Gombo ICC-01/05-01/08.

[14]        Prosecutor v Ahmad Al Mahdi  ICC-01/12-01/15

[15]        Prosecutor v Mathieu Ngudjolo Chiu ICC-01/04-02/12. He was acquitted.

[16]        The charges were terminated by the trial chamber on 13 March 2015. 

[17]        Karen Allen, BBC, 24 October 2016. 

[18]        Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others (867/15) [2016] ZASCA 17; 2016 (4) BCLR 487 (SCA); [2016] 2 All SA 365 (SCA); 2016 (3) SA 317 (SCA) (15 March 2016)

[19]        Democratic Alliance v Minister of International relations and Co-operation High Court of South Africa  CASE NO: 83145/2016

[20]        Prosecutor v Al Bashir ICC-02/05-01/09-302 6 July 2017.

Interview with Dr Jason Chin: Science in a Criminal Trial

By Penelope Bristow

What kind of scientific evidence might be lead in a criminal trial? In Australia, are there particular rules of evidence that apply to such scientific evidence?

As a general rule, scientific evidence is available whenever it makes a fact in issue more or less likely to be true. So that opens the door for any kind of science. For example, a marine biologist might be called to discuss whether a part of the ocean was frequented by sharks at a certain time of year to explain why a body wasn’t found.

But more often, the science comes in the form of “forensic science”, which is a term that just means science as applied to law. Some examples of forensic scientific fields are DNA and fingerprint identification.

In Queensland, the rules come from the common law: the evidence must be beyond common knowledge and from a person qualified in an established field of study. In most other States, uniform evidence law provisions apply. Note, however, that opinion evidence is an exception to the general rule that witnesses can provide only factual evidence. Thus, the party tendering the evidence bears the onus of proving the expert evidence meets the common law rule.

 

Generally, how do courts evaluate scientific evidence?

Whenever bodies of leading judges and scientists have convened to discuss scientific evidence, they have agreed that trial judges should carefully scrutinize scientific evidence and only admit it if it is demonstrably valid.

Unfortunately, trial judges don’t do that. Instead, they mainly just defer to the expert witnesses. This can be problem because many forensic sciences have never been independently tested. This is why approximately 60% of wrongful convictions contain invalid or misleading scientific evidence.

 

What role do expert witnesses and lay witnesses play in a criminal trial? What is the difference between an expert witness and a lay witness?

Both laypeople and experts can give opinions. Most commonly, lay witnesses offer eyewitness identification evidence: “That is the person I saw robbing the bank.” Expert witnesses’ opinions are also opinions but they can go beyond their personal observations. For example, the lay witness I just mentioned is comparing a mug shot to her experience seeing someone rob a bank. On the other hand, the expert witness is not relying on just her own observations, but on a body of research (performed by others) that she studies.

 

What kind issues do courts face in relation to expert witnesses giving opinions at a criminal trial? What can influence an expert witness’ evidence?

Generally, courts are supposed to figure out if the expert’s methodology is valid and reliable enough to go to the jury. It may not be valid, for instance, if the expert has been exposed to case details that could bias her decision. For instance, if she knew that the fingerprints she was matching belonged to the suspect in a high-profile act of terrorism, she might be biased towards declaring a match. This is actually what happened in the investigation of the 2004 Madrid train bombing. An Oregon lawyer, Brandon Mayfield, was identified as the bomber on the basis of a fingerprint match. The FBI examiner declared it an 100% match. In fact, Mayfield wasn’t even in the country at the time. The actual bomber was later identified.

 

What is the CSI effect and how can it affect a jury?

The CSI Effect is the hypothesized effect of a juror’s familiarity with crime scene dramas on her evaluation of forensic evidence. As the story goes, these dramas portray a very sophisticated science and thus when a juror is not presented such impressive evidence in court, she thinks the police have done a shoddy job. She is thus less likely to convict.

There’s simply no evidence that this is the case and I think people should move on from it and study more important and plausible things.

If you’d like to hear more about any of these topics, take LAWS5182 (Psychology and Law), which is being offered in the first term of 2018.

 

 

 

 

War means Woman at Risk: Australia’s Obligations to Protect the Rights of Refugee Women

Written by: Jessica C. Tselepy, runner-up in this year's essay competition.

Summary:

The Australian Government has created a Women at Risk program for refugee women resettling within Australia that attracts little praise outside of government sponsored materials. While it is a starting point for greater change, it currently functions in a way that neglects the rights of these women. These individuals remain to be at risk of human rights violations upon resettlement, especially discrimination and domestic abuse, with no effective intervention being currently pursued by the government. Australia’s protection obligations under international law are additionally being inadequately upheld in both national law and resettlement mechanisms. Until the Australian Government ceases to hide behind their empty progressive self-title, practical solutions will fail to be pursued.

 

War is a gendered affair. Global contexts of conflict are rife with abuses of power from the established strong against subjugated masses. The proliferation of sexual and gender based violence (GBV) in such times of conflict has led to a massive movement of individuals escaping the fear of, or continuation of, grave violations of their human rights[1]. While the proportion of the world’s 65.3 million people forcibly displaced are comprised of women by half, estimates show that current refugee camps around the globe are comprised of women by 80%[2]. The focus of the UNHCR on the heightened risk facing female refugees has led to the implementation of several national ‘Women-at-Risk’ (WaR) programs around the globe[3].

In 1989, Australia established the ‘Women at Risk’ visa (subclass 204) as a subcategory in their Refugee and Humanitarian Assistance program[4]. According to government estimates, this program has directly assisted more than 16,500 women and their families to gain permanent visas to rebuild their lives in Australia[5]. While painted in a positive light by government reports and limited selective statistics, the reality for female refugees resettling in Australia is not as bright.

The goal of this essay will be to critically analyse the essay questions, a) to what extent have the rights of refugee women been protected in Australia, and b) how much does the ‘WaR’ visa program directly contribute to this protection? My thesis statement is this: Australia’s protection obligations under international law are not being adequately invoked within national law nor its resettlement programs. Further, the implementation of the program, both in application requirements and processing standards, renders Australia’s contribution to the international refugee crisis minute.

This will be explored in two main areas. Firstly, examining the explicit problems with the provisions of the visa program to establish both its advantages and disadvantages to any applicant (Learning Outcome 6). Secondly, exploring the ignorance at a domestic level of how WaR visa holders are resettled. 

The current international context will then be examined to establish its influence on Australia’s domestic WaR policy, and will further be utilised to explore potential avenues for improvement. A critical analysis of international legislation and comparisons will help elucidate the gaps in the Australian ‘model’ and unfold the implications of complex issues and developments in immigration law and policy (Learning Outcome 4).

 Before this, I must firstly provide a brief examination of Australia’s complex pool of migration legislation and relevant judicial materials, to assess the national trends and biases in dealing with female refugees (Learning Outcome 1).

Domestic Legal Context

Through a long history of racial discrimination, Australia has created a reputation for overlooking the special needs of groups most in need of assistance. Our legal framework remains ultimately ineffective in addressing some of the most discriminative circumstances facing female refugees.

One such issue is framing women within the family (private) context. For instance, while both children and women are covered in parts by general national legislation, they are seldom referred to specifically, and are often lumped together as dependents to a male ‘head’[6]. This becomes problematic when attempting to address issues such as domestic violence, where the perpetrator may be present in all aspects of an application. Nonetheless, Australian refugee law has traditionally found persecution within the domestic sphere by non-state parties as being separate from the protections given under international law. While estimates indicate approximately 35% of women worldwide experience violence by an intimate partner[7], they are typically not considered to be a separate group deserving protection from non-state agents, enumerated neither by international nor Australian law.

The first inklings of positive change can be detected more in the judicial context than the legislative one. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs[8], both Kirby J’s and McHugh J’ judgements made explicit reference to the discrimination suffered by female asylum seekers in the form of sexual abuse. This began to affirm the separation of discrimination based on gender. The case of the Minister for Immigration and Multicultural and Indigenous Affairs v Khawar[9] furthered this distinction, where Kirby J extended the consideration of persecution to include non-state actors, where state negligence could be construed as withholding protection.

While the courts have fluctuated in their treatment of female refugees and asylum seekers (notably ruling against Plaintiff M68 despite health concerns related to her pregnancy in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors[10]), it appears the Australian government is still more interested in rulings that support an effectively discriminative status quo. This is demonstrated clearly in the Migration Legislation Amendment Act [No 6] 2001 (Cth) (MLAA)[11]. Women are not mentioned once in the amendment itself. Further, changing section 48 of the Migration Act to prohibit family members from making further visa applications is directly disadvantageous for women. As the principal applicant is usually male, this implicitly maintains a bias that the more ‘valid’ asylum seekers are protective males who are persecuted by the state, and that women should be regarded as their dependents. This passive stance by the legislature works to promote the silence of women in the application process, and maintains gender imbalances in those applications received.

Conversely, the Australian Government has made a few explicit attempts to acknowledge gender issues, through the Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (1996)[12] and the Guidelines on the Recognition of Sex and Gender (2013)[13]. Such efforts may be aimed in the right direction; however, they remain ineffective on a wide range of issue affecting female refugees. For instance, the 1996 Guidelines are silent on whether women should submit their claims as a dependent or individual. Ultimately, effectively limited the attention has been on creating practical change in processing for refugee women.

Issues with the WaR Program

One of the most seemingly progressive programs introduced by the Australian Government was their WaR program (WaRP). A few leading issues arise upon examination.

a)    ‘Burden of Proof’

Gender-based oppression can involve heinous acts committed against women. Unsurprisingly, many women in these traumatic situations may not feel comfortable sharing their experience entirely, if at all. A study by Settlement Services International in 2012 found that not only did many refugee women resettling in Australia feel ashamed of the abuse they underwent, but were also further stigmatised by these experiences within their communities[14]. As one case study articulated, women leaving violent husbands were considered to have “brought shame to her husband”[15].

Rape itself was only recently recognised as a crime against humanity in 1998, and thus grounds for refugee status[16]. Even today, many cases of rape of refugee women are dismissed by officials, judges, and some Australian officials. Findings show that seven out of twenty-two senior male officials in Australia used the phrasing “only rape” to describe the trauma of female refugees, when discussing whether it should be considered a grounds for a WarP referral[17].

Perhaps the most egregious factor of this entire phenomenon is that Australia does not accept any refugees for resettlement who are found to be HIV+[18]. Adding to the burden of trauma is the frequency with which HIV can be transmitted through this unprotected act, and the extra stress this places on women who’ve been sexually abused when applying. 

b)    IDPs

Outside of the world’s large numbers of refugees and asylum seekers lies the stark numbers of those internally displaced. According to a global report on Internal Displacement conducted in 2016, there are twice as many IDPs as there are refugees in the world[19]. However, any citizen eligible for WaRP must have successfully escaped their home country.

            Reaching a camp of refuge within one’s home country does not, however, decrease the frequency of gender-based violence. We Are Women Activists (WAWA) member Hawa Ali Jama stated that, “we are seeing more and more women who have been raped in displaced camps…”[20] She has reported that it is especially common for IDP men to request marriage from women, and when they are refused they rape them. Still, IDP women are blankly rejected.  

c)     Speed and numbers

Australia has traditionally struggled to fill quotas for WaRP, despite the overwhelming numbers of women in need of assistance. For instance, in the first two years of the program, less than one third of the annual allocation of visas were issued[21]. This is despite that fact that a majority of the numbers projected to be filled in the program include the female refugees’ families, limiting the spaces afforded to these women even more. Hayes and Winton (1991)[22] found that a large contributor to this was that the determination of eligibility was carried out by the country of first origin. These processes were often bogged down by bureaucracy and slow dissemination of information to officers, rather than reflecting the urgency of the situation.

d)    Unclear and deterrent guidelines

The vague requirements listed by the government seem more a political category than aimed at addressing female refugee’s vulnerabilities. Specified as those “in danger of victimisation, harassment, or serious abuse,”[23] women could be technically advantaged, as this technically allows any woman to make an application for this visa. Guidelines that are too specific may in fact be used against such women. For instance, in a Hong Kong refugee camp, a resettlement officer could not understand why any woman should be in a vulnerable position in Hong Kong because under their national laws “women are free to marry…so they should not be without male protection if they want it.”[24] This is based on the specification that eligible women must be single or have partners that are missing.

The open phrasing, however, can also increase the subjectivity of the selections made. This disadvantages women when considering the examples provided by the (then) Department of Immigration and Multicultural Affairs (DIMA) of what may constitute ‘risk’. This includes “societal oppression of women, denial of full participation in civic life, forced marriage, and female genital mutilation.”[25]

To provide some level of restriction to those women eligible, the Australian Government stipulated that assessment should involve consideration of factors including connection to Australia, whether there’s anywhere else for them to go, and whether there is capacity in Australian communities[26]. Such attempts at restrictions are still discouragingly vague and subjective. This is concerning not only for women’s rights, but for the sake of good governance.

Ignorance of Resettlement Problems

Resettlement is not equivalent to a human rights obligation completed. Women who, despite thin odds, have qualified for WaRP and resettled in Australia are faced with a completely foreign culture. While many of the programs the Australian Government has created appear sufficient in their description, there remains a gap in reaching those resettled WaRP visa holders who struggle with low socio-economic status, trauma, and continued risk. There are a few key areas where women resettled under WaRP experience difficulties.

a)    Education

Education could be, arguably, the most important avenue of transition for female refugees in Australia. As one woman articulated, “education leads to confidence for women.”[27] Many women arriving under the WaRP have little to no education, low English proficiency, and end up feeling more isolated from their new community. Many women arrive from cultures where their culture may have dictated that they stay at home and receive no education. The harms of this are expressed in a study of Pakistani immigrants in the United Kingdom[28], where it was found that depression was associated with a lack of fluency in English.

The major inhibitor to women receiving education in Australia is arguably their prioritisation of duties: in the post-arrival context, many women prioritise supporting other family member’s education and pursuing financial support for their family overseas. While this may be a systemic problem on ongoing international conflicts and entrenched cultural values, there still remains an evident thirst by women for education. One study found that nearly all refugee women interviewed expressed a high level of motivation for educational opportunities[29]. The avenue for access now needs to be bridged between the education offered and the desire to be educated.

b)    Employment

While many women resettled under WaRP have attempted to engage in employment, the pervasive issue of workplace discrimination and racism remains. As one Iraqi woman has expressed, “no one will give us jobs because we do not speak the language well, we do not have qualifications, any experience.”[30] Those that do have qualifications often find they are not recognised in Australia. Frequent cases arise of women turning to domestic work or work in the sex industry, increasing the probability of their rights being violated[31]. This can have flow-on effects to income, accessing services, and mental health.

c)     Continuation of GBV

A female refugee’s ‘risk’ is not over once she is resettled. It has been identified that refugee women are especially at risk of domestic violence once resettled[32]. While many women have testified to being more protected from domestic violence than they were previously, many female refugees with WaR visa also find it difficult to refuse unwanted sexual advances by a ‘sponsor’ where they feel indebted[33]. Refugee women have consistently communicated their hesitancy in approaching any authority for assistance, less they are not believed or their violent situation increases[34].

International Obligations

In a time of ‘asylum fatigue’, female refugees increasingly face the risk of being excluded from international protection. This can both be a result of Australia acting in contravention of their international obligations, and international obligations which are not comprehensive enough.

a)    Contravention

The Australian government have taken a somewhat preferential approach to international refugee law. They have argued that, “People resent the fact that the regime for the protection of refugees is established by international laws which constrain the operation of Australia’s domestic law.”[35] For example, in response to the increase in ‘boat people’ in the late 1990s, Australian officials even contemplated putting all international treaties “on hold.”[36]

The most notable, though ‘arguable’, contravention of international refugee law by Australia was the Tampa fiasco. The government swiftly passed through the Border Protection Act 2001 to excuse its actions[37]. However, introducing any such laws violates the principle of customary international law, under Article 27 of the Vienna Convention on the Law of Treaties (VCLT)[38], that a state may not evade its international obligations by adopting conflicting domestic legislation.

Despite this violation, arbitrary demarcations, such as the law adopted in 2001 to define islands within a 12-mile zone as outside the ‘migration zone’, continue to proliferate. This in itself directly violates Article 29 of the VCLT[39], pursuant to Article 2, paragraph 1 of UNCLOS[40], to implement the Refugee Convention in all sovereign territory.

Australia has also manipulated the interpretation of ‘genuine’ asylum seeker to be ‘law abiding’ rather than just fulfilling the conditions stipulated by the Refugee Convention to seek asylum. Australia has increased stopping immigrants who have been refused or granted asylum in another country[41]. By framing asylum seekers as ‘security threats’ and responding accordingly, Australia is technically failing obligations to protect refugees.

b)    Lacking Comprehensiveness

Nonetheless, international law is not perfect. A discomforting number of international conventions and agreements exclude reference to the specific problems of female refugees. This is arguably associated with the fact that gender specific harm is not enumerated under the 1951 Refugee Convention[42]. This includes family violence, forced marriage, honour killings, female genital mutilations, and sexual violence. Australia has therefore made an ostensibly progressive step in specifying FGM as a special condition for WaRP eligibility (although exact figures of how many women with FGM have been targeted is not readily accessible). Further, they have made special, though rare, exceptions to recognise women as a social group (as described in the court cases above).

However, when this exception is not made, rape, a leading tool of oppression and abuse against women, is not considered as cause for application. A refusal to acknowledge sexual abuse and domestic violence as special circumstances affecting female refugees could be construed as a contravention of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex,”[43] as well as the UN Declaration of the Elimination of Violence Against Women, which “requires state parties to pursue by all means appropriate and without delay a policy of eliminating discrimination against women”[44]. Australia is a party to both.

Recommendations

International comparisons, as well as seeking to fulfil international obligations more clearly, are useful contexts to explore potential avenues for improving WaRP. I make the following recommendations:

a)     International Legislation and Refugee Camps

·      Update the definition of refugee, and all relevant international legislation, to reflect the special group status of women at risk, particularly those subject to any gender based violence, including rape.

·      Require all refugee camps to involve women, through the construction of women’s committees, in the distribution of basic goods. Additionally, such committees may appoint official spokespersons for consultation with external agencies, so that women do not have to consult men, especially when seeking justice for sexual crimes. Camps which have adopted this practise have found significant decrease in sexual harassment[45].

b)    Data collection and Reporting

·      Increase data collection that reflects the refugee experience by gender, including more statistical data available on the reasons for fleeing their home country. Additionally, increase documentation of human rights and international law abuses by Australia.

c)     Application Process

·      Require all family members who are claiming asylum to complete individual application forms and be interviewed individually, with a female interviewer and interpreter if requested. This has been introduced in New Zealand and Canada, and allows women to freely express hardships that may be present within the private context[46].

d)    Domestic Education and Training

·      Education and training programs should incorporate resources for any relevant ethnic group, emphasising the importance of Elders and community leaders in assisting new families where appropriate. These leaders may be useful representatives in conflict resolution and negotiated settlements where a woman may not feel comfortable to do so.

·      Create a government sponsored public education program calling for the protection of full gender equality for refugee women, encouraging all Australians to reject cultural relativism when it intervenes with women’s fundamental rights, while respecting the right of refugee women to re-establish cultural norms they believe promote wellbeing. This is practised in Sweden and inspired by the Council of Europe’s Parliamentary Assembly 2005 Report on the Integration of Immigrant Women in Europe[47]. It is aimed to ease the transition of refugee women into traditionally biased communities.

·      Increase the creation and dissemination of literature, translated into all relevant languages of newly arrived refugee women, that covers the basics of Australian culture, money management, dealing with Australian institutions, and an overview of our major justice systems. This will allow women to begin their education process, while they may prioritise supporting family at home or seeking employment first.

Conclusion

The Australian Government has created a program under WaR that attracts little praise outside of government sponsored materials. While it is a starting point for greater change, it currently functions in a way that still neglects the rights of refugee women. This group is still at risk of human rights violations upon resettlement, especially discrimination and domestic abuse, with no effective intervention being pursued by the government. Australia’s protection obligations under international law, especially the 1951 Refugee Convention and the VCLT, are not being adequately upheld in national law nor in resettlement mechanisms. Until the Australian Government ceases to hide behind their empty progressive self-title, practical solutions will fail to be pursued. It is hoped that these few recommendations may contribute towards the impetus needed for effective change.

_____________________________________________________________________________

[1] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[2] United Nations High Commission for Refugees (UNHCR), Figures at a Glance, (20 March 2017) < http://www.unhcr.org/en-au/figures-at-a-glance.html>.

[3] Australian Government: Department of Social Services, Getting Settled: Women Refugees in Australia (2013).

[4] Ibid.

[5] Department ofImmigration& Border Protection, Australia’s Refugee and Humanitarian Program (20 March 2017) <http://www.border.gov.au/about/corporate/information/fact-

sheets/60refugee>.

 

[6] Freedman, Jane, ‘Gendering the International Asylum and Refugee Debate’ (2015) Springer 120.

[7] World Health Organization, ‘Global and regional estimates of violence against women: prevalence and health effects of intimate partner violence and non-partner sexual violence’ (2013) 2.

[8] [2000] HCA 19.

[9] [2002] HCA 20.

[10] [2015] HCA 14.

[11] Migration Amendment Bill (No. 6) 2001 (Cth).

[12] Australian Government, Australian Government Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision-Makers (2013).

[13] Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (2013).

[14] Bartolomei, Linda, Rebecca Eckert, and Eileen Pittaway, ‘What happens there... follows us here: Resettled but Still at Risk: Refugee Women and Girls in Australia’ (2014) 30.2 Refuge: Canada's Journal on Refugees.

[15] Ibid, 10.

[16] Canning, Victoria, ‘Who's human? Developing sociological understandings of the rights of women raped in conflict’ (2010) 14.6 The International Journal of Human Rights 849-864.

[17] Pittaway, Eileen, and Linda Bartolomei, ‘Refugees, race, and gender: The multiple discrimination against refugee women’ (2001) 19.6 Refuge: Canada's Journal on Refugees.

[18] Correa-Velez, Ignacio, Sandra M. Gifford, and Sara J. Bice, ‘Australian health policy on access to medical care for refugees and asylum seekers’ (2005) 2.1 Australia and New Zealand health policy 23.

 

[19] Internal Displacement Monitoring Centre, ‘Global Report on Internal Displacement’ (2016).

[20] Akua-Sakyiwah, Beatrice, ‘Somali Refugee Women’s Perception of Access to Services in the UK’ (2012) University of York.

[21] Hugo, Graeme, ‘From compassion to compliance? Trends in refugee and humanitarian migration in Australia’ (2002) 56.1 GeoJournal, 40.

[22] Hayes, Diana, and Sylvia Winton, ‘An Evaluation of the Women at Risk Scheme’ Australian National Consultative Committee on Refugee Women (1991).

[23] Department of Immigration and Border Protection, ‘Woman at risk visa (subclass 204)’ (2016) Australian Government  < https://www.border.gov.au/Trav/Visa-1/204->

[24] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[25] Ibid.

[26] Refugee Council of Australia, ‘Recent Changes in Australian refugee policy’ (2016) < http://www.refugeecouncil.org.au/publications/recent-changes-australian-refugee-policy/>

[27] Rees, Susan, and Bob Pease, ‘Refugee settlement, safety and wellbeing’ (2006) Melbourne: Immigrant Women’s Domestic Violence Service 7.

[28] Bhugra, Dinesh, and Oyedeji Ayonrinde, ‘Depression in migrants and ethnic minorities’ (2004) 10.1 Advances in Psychiatric Treatment 13-17.

[29] Watkins, Paula G., Husna Razee, and Juliet Richters, ‘‘I'm Telling You… The Language Barrier is the Most, the Biggest Challenge’: Barriers to Education among Karen Refugee Women in Australia’ (2012) 56.2 Australian Journal of Education 126-141.

[30] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[31] Parreñas, Rhacel Salazar, ‘Servants of globalization: Women, migration and domestic work’ (2001) Stanford University Press.

[32] Menjívar, Cecilia, and Olivia Salcido, ‘Immigrant women and domestic violence: Common experiences in different countries’ (2002) 16.6 Gender & society 898-920.

[33] Manderson, Lenore, Margaret Kelhar, Milica Markovic and Kerie McManus, ‘A Woman without a Man is a Woman at Risk: Women at Risk in Australian Humanitarian Programs’ (1998) 11 Journal of Refugee Studies 267.

[34] Kagan, Michael, ‘Is truth in the eye of the beholder-objective credibility assessment in refugee status determination’ (2002) 17 Geo. Immigr. LJ 367.

[35] Crock, Mary, Ben Saul, and Azadeh Dastyari, ‘Future seekers II: Refugees and irregular migration in Australia’ (2006) 2 Federation Press 174.-

[36] Ibid.

[37] Peyser, Emily C, ‘Pacific Solution? The Sinking Right to Seek Asylum in Australia’ (2002) 11 Pac. Rim L. & Pol'y 431-795.

[38] United Nations, ‘Vienna Convention on the Law of Treaties’ (1969) 1155 United Nations Treaty Series, 331.

[39] Ibid.

[40] UN General Assembly, ‘Convention on the Law of the Sea’ (1982).

[41] Heywood, Philip R., and Hannah Stanley, ‘Rights and wrongs of Australian government asylum seeker policy’ (2015).

[42] UN General Assembly, ‘Convention Relating to the Status of Refugees’ (1951) 189 United Nations, 137.

[43] UN General Assembly, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ 1249 (1979) 13.

[44] UN General Assembly, ‘Declaration on the Elimination of Violence against Women’ (1993).

[45] Buscher, Dale, ‘Refugee women: Twenty years on’ (2010) 29.2 Refugee Survey Quarterly 4-20.

[46] McKay, Leanne, ‘Women asylum seekers in Australia: discrimination and the Migration Legislation Amendment Act (No 6) 2001 (Cth)’ (2003) 4 Melb. J. Int'l L. 439.

[47] Vink, Maarten P, ‘Limits of European citizenship: European integration and domestic immigration policies’ (2005) Springer.

Legal action and Climate Change: An interview with Dr Justine Bell-James

Dr Justine Bell-James is a Senior Lecturer at the TC Beirne School of Law, teaching undergraduate and postgraduate courses in the areas of environmental law and property law.  Dr Bell-James undertook her postdoctoral research at the Global Change Institute at The University of Queensland, focussing on legal, policy and insurance responses to coastal hazards and sea-level rise. Dr Bell-James's research focuses on legal mechanisms for protection of the coast, drawing upon environmental, planning, property and tort law. In addition to her work on sea-level rise, Dr Bell-James is also particularly interested in novel legal mechanisms for protection of coastal ecosystems like mangroves and seagrass, protection of the Great Barrier Reef, and biodiversity offsets in the coastal context.

What legal or policy action is being taken globally, and in Australia to mitigate the effects of Climate Change?

Globally, things have really picked up since the Paris Conference and subsequent Agreement in 2015, and the work leading up to that. We now have a new legal mechanism aimed at restricting warming by 2 degrees by 2100, with an aspirational goal of 1.5 degrees. The big problem with this scheme is that there is some disconnect between the goal that we are working towards and the mechanism that’s being put in place to try and achieve that.

Currently, the scheme relies on all the individual countries that are subject to the Agreement putting forward what they are going to do domestically to reduce emissions – their ‘Nationally Determined Contribution’ (‘NDCs’). The expectation – or perhaps hope - is that when you add these up, you’ll get the end goal. The problem is that with what countries have promised at the moment, we will only restrict warming to about 2.7 degrees. Therefore, while the Paris Agreement has a great underlying objective, the mechanism currently in place to try and achieve this objective is flawed.

That said, the Paris Agreement also has something called the ratchet mechanism - countries have to make new NDCs every five years, and with each new promise they need to ‘ratchet up’ their obligation, or ‘increase ambition. The idea is that eventually we will get to the point where what countries are promising to do will meet the goal of the agreement. Unfortunately, we are not there yet.

In Australia it’s an even sadder story. After the Abbot government came into power and removed the carbon pricing mechanism, they introduced a substitute called the Emission Reductions Fund (‘ERF’). This is essentially a pool of money to buy emission reduction credits from companies. So, for example, a group might implement some sort of emissions reduction project (e.g. plant a forest which will sequester carbon), and by doing that they can generate credits which the government will buy using the fund monies.

The problem with that is that it’s costing the government money, rather than the polluters. The second problem is that the pool of money isn’t large enough to buy enough credits to meet our Paris Agreement commitment. The funds currently allocated to the ERF would only be capable of purchasing 14% of what Australia has promised to do, and 7.5% of what would be needed to keep warming within two degrees.

So, we have a flawed international mechanism to start with, and the domestic measures we have in Australia will not come even close to what we promised to do under that flawed mechanism.

In Queensland there have been several major challenges to coal mine developments on the basis of their contribution to climate change. How were these challenges framed?

To get approval to develop a mine in Queensland, there are hundreds of approvals you need, but there are two major state based ones: a mining lease and an environmental authority. These are administered under separate pieces of legislation.

There have been three major challenges in Queensland: the recent Carmichael Mine case (2015),  the Hancock Coal case (2014), and the Wandoan Mine case (2012). These three cases involved challenges to the grant of both the mining lease and the environmental authority. Under the legislation, there are prescribed factors to be taken into account in determining whether to grant an approval. The big problem is that neither of those pieces of legislation specifically requires climate change to be considered. So, the litigants have effectively tried to utilise requirements to consider impacts on the environment generally to try and frame these climate change arguments.

 

What are some of the major difficulties associated with these challenges, and other climate change related litigation?

The first is the lack of specific legislation. The groups that have been mounting these challenges have had to frame their climate change arguments within the context of general environmental law. Simply arguing that a mine will contribute to climate change is insufficient. Instead, the argument is a multi-step process, that the mine development will cause climate change, and climate change will have an impact on the environment. It’s kind of like arguing a chain of causation – there are several steps that build upon another.

The other big challenge that these groups come up against is the issue of Scope 3 emissions. A mining project involves three types of emissions; Scope 1 emissions are the emissions that will happen directly from that mine (eg. when you dig into the coal seam a certain amount of CO2 will be released). Scope 2 emissions include things like the electricity the mine consumes and the emissions which derive from that. Scope 3 are the indirect emissions. If coal is sold to a third party in China or India or elsewhere and they burn it, the emissions produced are the Scope 3 emissions. These Scope 3 emissions are unequivocally the biggest problem in the context of climate change – they make up about 99% of the emissions from a mine. Digging the coal up out of the ground in Australia has a minimal impact on climate change; it’s sending that coal overseas and having it burnt that will make a huge contribution to global climate change.

The consequent difficulty is convincing a Court that Scope 3 emissions are relevant in granting a mining lease or environmental authority. Unfortunately, Courts have struggled to accept that something that happens in Queensland is going to lead to something happening overseas, which will, in turn, have an impact on the atmosphere globally that will then ‘come back’ to Qld and have some sort of impact here. This is complicated ‘chain of causation’ type problem.

Although these challenges were ultimately unsuccessful, is such litigation still valuable? What can be taken away from the findings in these challenges?

Yes, these challenges are still valuable. Considering the three challenges that have been heard in Queensland from a purely legal perspective, we’ve seen an incremental development in the law. Even though three challenges were ultimately unsuccessful on climate change grounds, with each the court has been prepared to go a little further in what is considered relevant.

These challenges are also valuable in that they bring public attention to these issues, and the other environmental impacts of these proposals. For example, in the Carmichael Mine case, through undertaking all preparations for the trial, the challenge group found that the mine site was the only habitat for a particular threatened species, the black throated finch. Prior to that case there was a belief that there were several major habitats for this finch, but it was discovered that the mine site is in fact the main habitat. In this way, the process of preparing for litigation can shed light on other issues as well.

Are there any negative effects that such litigation may have on law reform in the area?

There is a really clear example of the negative effects this litigation can have in Queensland. In 2007, there was a notorious case heard by the Land and Resources Tribunal (the predecessor to the Land Court). In that case, both parties agreed that climate change was real and caused by human actions. The issue was whether or not the particular party in that case would contribute to climate change.  However, the judge in that case went away and did some research of their own and found some interesting material online casting doubt on climate change science. This information was included in the judgment. That case was swiftly appealed and the Court of Appeal overturned it. However, within a few hours of the Court of Appeal decision, the Queensland State Government announced that it would introduce special measure legislation to specifically deal with this issue and allow the project to proceed, because it couldn’t have legal technicalities holding up the project. So that was a case where unfortunately the litigation lead to a swift response by the legislature for that particular project.

It’s hard to identify any other overtly detrimental responses. There have been a couple of other legal changes that have been made in the last few years, which some commentators have attributed this to that litigation. I don’t think that is the case – there has been a lot of other things happening externally that have led to a tightening of climate change policy, and I don’t think you can necessarily marry the two together. But certainly yes, there have been impacts in the past.

What challenges does future litigation in this area face?

There is still that issue of trying to convince the court of the relevance of scope three emissions. Even though we making progress, you are going to need a pretty progressive court to accept the multi-step arguments advanced by the parties. At present, the biggest challenge is that judges are required to work within the confines of legislation that is not directed at climate change. How far can you stretch the legislation which really wasn’t designed for this purpose? In NSW there is a specialist Land and Environment Court that has judges that are trained in environmental law. They have proven more amenable to accepting these sorts of arguments. Unfortunately, these decisions are sometimes overturned by the NSW Court of Appeal. 

From a practical perspective funding is also a problem. The clients for these sort of challenges are often community groups. In the Land Court parties often bear their own costs, so the financial ramifications of losing a case aren’t crippling. However, if you go on appeal there is the prospect of an adverse cost order being made against you. These are effectively David and Goliath battles and there are often practical reasons why some cases aren’t taken as far as they need to go: the client simply cannot afford to bear the costs.