Dr Karen O’Connell is an expert in discrimination law, particularly sex and disability discrimination, and biotechnologies of the body, neuroscience and genetics. She is experienced in law reform, policy development and managing large research projects. With Professor Isabel Karpin she holds an Australia Research Council grant on "The Legal Regulation of Behaviour as a Disability" (2015-2018).
Prior to joining UTS as a Chancellor’s Postdoctoral Research Fellow she worked in human rights law and policy at the Australian Human Rights Commission. In a number of senior roles, she worked on national inquires and major reports into pregnancy discrimination, immigration detention, paid maternity leave, family responsibilities discrimination and age discrimination. She co-wrote submissions on key human rights cases and law reforms and produced national guidelines on sexual harassment and pregnancy discrimination. Dr O'Connell completed her masters and doctoral degrees at Columbia University in New York.
At UTS, Dr O'Connell is Co-Convenor of the Biotechnologies of the Body Research Group, co-founded the Feminist Legal Research Group and founded an Early Career Researcher Writing Group. She is active in human rights and law reform work, including as a member of the Discrimination Law Experts Group, and as an adviser on projects for the Intellectual Disability Rights Service and the Australian Human Rights Commission.
Dr O'Connell has won numerous academic awards and scholarships, including the Audrey Harrisson Fellowship from the Australian Federation of University Women and the Finkelstein Fellowship from Columbia Law School. She was also awarded a scholarship to attend the Hebrew University of Jerusalem as a Visiting Scholar, and received prizes from the University of Sydney in History, Essay Writing and Law.
Can supervise: YES
- Discrimination law, especially sex discrimination and disability discrimination
- Theories of identity and embodiment
- Neuroscience and neuroethics
Australian Constitutional Law
Discrimination and the Law
Australian Discrimination Law
O'Connell, K 2019, 'Can Law Address Intersectional Sexual Harassment? The Case of Claimants with Personality Disorders', Laws, vol. 8, no. 4, pp. 34-34.View/Download from: Publisher's site
Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law on sexual harassment in Australia where there are intersectional factors and asks whether the "intersectionality" section inserted into the federal Sex Discrimination Act in 2011 has impacted legal practice and decision-making. In particular, it considers the situation of sexual harassment claimants with behavioural and personality traits that are considered "disordered" and the specifically gendered disability stereotypes that shape their treatment in law. Recent cases in Australia dealing with the sexual harassment of people with personality disorders show that intersectionality provisions of sexual harassment laws may in fact be used to undermine a legal claim by a person with disability rather than strengthen it. This article argues that an intersectional legal feminist perspective on harassment is needed for the law to work.
O'Connell, K 2017, 'Eccentricity: the case for undermining legal categories of disability and normalcy', Continuum: Journal of Media and Cultural Studies, vol. 31, no. 3, pp. 325-364.View/Download from: Publisher's site
Disability discrimination laws are directed at protecting people with disabilities, including people with 'disturbed' behaviour, or behaviour that is a manifestation of a disability, from unfavourable treatment. Yet, in doing so, discrimination laws contribute to the creation of a stigmatized and seemingly static legal category of disability. In response, this paper presents eccentricity as a 'border' region between disability and normalcy, one that can disturb the strict and stigmatizing boundary between these artificially separate categories of identity. Eccentricity, understood as a set of socially unusual or unconventional behaviours and traits, is a heightened version of the quirks and idiosyncrasies we all share, and reveals the interconnection of disability and normalcy. This paper asks whether current legal and biomedical definitions of disability, especially under disability discrimination law, have unnecessarily eradicated this rich and destabilizing category of identity and behaviour. Is law complicit in the narrowing of what it means to be 'normal', the expansion of what it means to be 'disabled' and the destruction of what would otherwise connect those two imagined states of being? This paper examines the way that law deals with eccentricity and argues that it is a concept that can potentially enrich our approach to discrimination law.
O'Connell, K 2017, 'Should We Take the 'Disability' Out of Discrimination Laws? Students with Challenging Behaviour and the Definition of Disability', Law in context (Bundoora, Vic.), vol. 35, no. 2, pp. 108-128.
Disability discrimination law has been of limited benefit to people
with atypical and challenging behaviour. The role that law might play
in upholding the equality rights of people with challenging behaviour
is potentially expanded by changing medical and scientific knowledge
about such behaviour, which brings more people within the definition
of 'disability' and the protective ambit of the law. Yet this protective
promise has not translated into legal gains, with few successful equality
law cases decided in Australian courts and tribunals. This article
critically examines the role of law, particularly anti-discrimination
law, in regulating (or protecting) divergent behaviour, using a case
study of students with challenging behaviour in Australian schools. It
considers the lack of successful discrimination law cases in the education
context, and asks whether, given this seeming legislative failure,
disability discrimination laws have anything left to offer school
students in terms of protecting their equality rights. The article gives
an overview of anti-discrimination complaints and cases brought by
students with challenging behaviour. It includes interview data from
State and federal anti-discrimination bodies, legal practitioners and
disability activists to complement case law and other public reports
of discrimination. Using this background data, the article considers
whether current discrimination law models do enough to protect
the rights of students with challenging behaviour to education and
inclusion in public life or whether new legal and policy measures are
needed. It specifically examines changes to the regulatory landscape,
including the Convention on the Rights of Persons with Disability,
and whether there are any real prospects for law reform
O'Connell, K 2012, ''A Plural Thing': Inventing A Feminist Based Brain-Based Subject of Law', Australian Feminist Law Journal, vol. 37, no. December, pp. 15-32.
A brain-based subject of law is emerging, in which neurological processes become a primary means of defining individual choice, behaviour, capacity and responsibility. This paper considers the impact of such a shift in legal subjectivity on feminist engagement with law. A reductionist take on the brain works to entrench narrow readings of law and discourage feminist reforms. However, emerging neurotechnologies such as brain scanning and neuropharmacology also have disruptive qualities that might be harnessed in the interests of feminist legal inventions and interventions. This paper looks to the disruptive aspects of neurotechnologies to argue for an alternative brain-based subjectivity in law, one that sees the brain as 'open': an organ that connects us to others, that is embedded in relationships and situated in a particular history and politics. Such an approach makes visible the gendered underpinnings of 'neurolaw' and allows for a brain-based legal subject that is open to feminist creativity
The brain is commonly thought of as a bounded and private organ of selfhood a repository of individual thoughts and desires, a ? black box ? closed against inc ursions. Yet contemporary neuroimaging technologies seem to open the brain to scrutiny, offering a selfhood that is increasingly transparent, knowable and manipulable. On one view, this recasts the brain as a site of potential regulation, subject to the la nguage of self - discipline, law and medical intervention. Yet there is also a disruptive element to these technologies, as they reveal the brain to be embedded in overlapping biological, social and environmental systems, interdependent and in constant chang e over time. This article considers the significance of these developments for law, with particular reference to the construction of disabled identity and the brain in discrimination law. Will this sense of openness in the brain merely provide opportunitie s for increased medical regulation, in which law is bypassed, and neuroimaging technologies facilitate the identification of risk in individuals and mitigation of that risk through neurochemical and other brain interventions? Reading these technological de velopments alongside current theories of disability and neurodiversity, this article offers an alternative view of legal selfhood in which the brain is neither a black box nor an object to be screened and controlled, but open in a more radical sense, insep arable from its functioning within the body and environment, constituted by and constitutive of the Other.
O'Connell, K 2009, 'The Clean and Proper Body: Genetics, Stigma and Disability Discrimination Law', Australian Journal of Human Rights, vol. 14, no. 2, pp. 139-162.
The dividing line between the stigmatised and normalised, `clean and proper, body is integral to law. Disability discrimination laws, even as they set out to offer protection to those defined as disabled, entrench the division between normalised self and stigmatised other, projecting onto the `disabled body those abject qualities of incapacity or vulnerability that the privileged normalised body seeks to deny. This seemingly static relationship, however, has the potential to be transformed by the disruptive qualities of the new genetics. Genetic technologies create novel forms of abjection, revealing all bodies as flawed and undermining the fantasy of the clean and proper body. This allows for the possibility of a new approach to disability discrimination laws, based on a more ethical relationship between the normalised and stigmatised body
O'Connell, K 2008, 'Pinned Like a Butterfly: Whiteness and Racial Hatred Laws', Australian Critical Race and Whiteness Studies, vol. 4, no. 2, pp. 1-12.
This article explores ideas of whiteness and racial harm by focusing on an area of law in which these themes are pivotal: the regulation of racial hatred. Racial hatred provisions in anti-discrimination laws were established to provide a public space protected from offensive or intimidating racist behaviour. However, based as they are in equality doctrines, they also allow whites to bring claims of racial hatred against blacks. How does law respond, and how should it, when white applicants present themselves as victims of racial harm? This article argues for a legal response that makes embodiment central to the resolution of these cases.
O'Connell, K 2007, ''We Who Are Not Here': Law, Whiteness, Indigenous Peoples and the Promise of Genetic Identification', International Journal of Law in Context, vol. 3, no. 1, pp. 35-58.
In contemporary law, genetic technologies of the body have provided a new layer of complexity to legal determinations of racial identity. Indigenous peoples in particular are often forced to present themselves before law as invisible peoples requesting embodiment, possessing no set identity and requiring a legal determination of their status. In return for their participation in genetic research indigenous peoples have been promised, amongst other things, a reliable identification that would make them visible as indigenous before the law. This article examines genetic and non-genetic approaches to identifying indigenous peoples through a case study of Australian law and argues that while genetic technologies may have little to offer indigenous populations they do hold out the possibility of making visible to whites and white institutions their own obscured racial identity.
MatriLineTM, one of the services offered by the Oxford Ancestors project, a genetic mapping exercise carried out by Professor Brian Sykes of Oxford University, offers women the opportunity of using 'the proven power of mirochondrial DNA to probe into the deep past') MatriLine analyses individual DNA to locate women in relation to a framework of European maternal ancestors, linking them 'to one of seven women: Ursula~ Tara, Helena, Katrine~ Velda, Xenia or Jasmine'
Redman, R & O'Connell, K 2000, 'Achieving Pay Equity Through Human Rights Law in Australia', Australian Journal of Human Rights, vol. 6, no. 1, pp. 107-122.
Karpin, I & O'Connell, K 2020, 'Disability, Gender and Institutions : An Examination of Australian Cases Involving Personality Disorders' in The Legacies of Institutionalisation Disability, Law and Policy in the 'Deinstitutionalised' Community, Hart Publishing, UK, pp. 135-148.View/Download from: Publisher's site
The deinstitutionalisation of people with mental health issues from psychiatric hospitals and mental health facilities in Australia from the 1970s through to the 1990s had the potential to be a liberalising policy that ended harmful and dehumanising practices of isolation and abuse. In fact, deinsitutionalisation as a process is ongoing and has had mixed success. Demands for compensation for those who suffered abuse in these 'total institutions' and punishment of the perpetrators continue. By way of understanding the limited success of deinstitutionalisation, this chapter turns to what initially might be considered an opposing desire: institutional inclusion. We argue that the exclusionary practices of 'social institutions' are a co-related 136problem. In order to make this argument, we consider the role for law in responding to situations where people with mental illness are denied access to, or rejected from, social institutions such as the workplace because they do not fit within the norms and values lodged in those institutions. Douglas argues that '[t]he most profound decisions about justice are not made by individuals as such, but by individuals thinking within and on behalf of institutions'. If social institutions structure our way of thinking and the abstract principles for regulating behaviour, then it is easy to see how social institutions can, in practice, diminish the expected successes of the 'deinstitutionalisation' project by continuing to shut people with disabilities out of public life in ways that have largely escaped the degree of scrutiny imposed on total institutions. Law then, in its inadequate remedies, sometimes amplifies the exclusion of those whose behaviour sits outside social norms.
Any discussion of deinstitutionalisation from 'total institutions' then, must occur in conjunction with consideration of exclusion from the 'social institutions' that play a crucial complementary role as gatekeepers to full public p...
O'Connell, K & Karpin, I 2017, 'Social determinants of health and the role of law' in Farrell, A, Devereux, J, Karpin, I & Weller, P (eds), Health Law Frameworks and Context, Cambridge University Press, UK, pp. 34-47.
O'Connell, K 2014, 'Bad Boys' Brains: Law, Neuroscience and the Gender of 'Aggressive' Behavior' in Schmitz, S & Hoppner, G (eds), Gendered Neurocultures, Zaglossus, Vienna, pp. 299-317.
Karpin, IA & O'Connell, K 2005, 'Speaking into a Silence:The Australian Constitution and the Rights of Women' in Beverley Baines (ed), The Gender of Constitutional Jurisprudence, Cambridge University Press, New York, USA, pp. 22-47.
O'Connell, K 2005, 'The Devouring: Genetics, Abjection and the Limits of Law' in Shildrick, M & Mykitiuk, R (eds), Ethics of the Body:Postconventional Challenges, MIT Press, Cambridge, MA, pp. 217-234.
"The Devouring" is the Romany term for the Holocaust, in which up to half a million Romany people died and an unknown number were harmed C , (Rittner and Roth 1993). "Devouring" is a word that in the context of , the Holocaust describes a form of destruction that is also consumption. .', In the Holocaust, people, ways of life and thought that were fundamental to European life were not simply expelled, but destroyed in a self- , annihilating violence. The Nazi regime tried to destroy the roots of its . own European culture, steeped as it was in Judaic tradition.
Karpin, I & Oconnell, K 2004, 'Speaking into a silence: Embedded constitutionalism, the Australian constitution, and the rights of women' in The Gender of Constitutional Jurisprudence, pp. 22-47.View/Download from: Publisher's site
© Cambridge University Press 2005 and 2010. The Australian Constitution is a document that is mostly silent about rights. It has no comprehensive set of enumerated rights in the form of a bill of rights. Instead, it sets up a federal system and the basic framework of a representative democracy, with a few specific rights scattered throughout. Federal and state legislation provide the express means of protection of equality. Yet, the Constitution is a crucial part of the framework for understanding women's rights in Australia. Not only does it provide the source of federal legislative power with respect to equality but also, in recent years, a minority view on the High Court has asserted that equality is the underlying principle upon which the Constitution is founded. In this chapter, we explore the way that the Australian Constitution, without an explicit set of enumerated rights, can and should be used to establish and protect women's rights in practice. We consider how women have shaped the Australian Constitution both in its creation and throughout its development to the present day and argue that the federal system reinforces the traditional division of public and private life to the detriment of women. Looking at the formal mechanisms that exist for pursuing equality and antidiscrimination claims in Australia with reference to international covenants, domestic, federal, and state legislation, we show that Australian constitutional rights are embedded into a larger institutional, bureaucratic, and cultural framework.
SaratChandran, P, O'Connell, K & Rosenman, E Australian Human Rights Commisson 2010, Age Discrimination - exposing the hidden barrier for mature age workers, pp. 1-19, Sydney.
O'Connell, K & Cerise, S Human Rights and Equal Opportunity Commission 2008, Genger equality: What matters to Australian women and men, pp. 1-20, Sydney.
Goward, P, Mihailuk, T, Moyle, S, O'Connell, K, De Silva, N, Squire, S & Tilly, J Human Rights and Equal Opportunity Commission, Commonwealth of Australia 2005, Striking the Balance: Women, Men, Work and Family, pp. 1-136, Australia.
This report sets out an innovative approach to resolving the ongoing problem of combining paid work with caring responsibilities, broadening the debate to include men's work and aged and disability care.