This article responds to growing concerns in human rights practice and scholarship about confinement of people living with dementia in care homes. Moving beyond the existing focus in human rights scholarship on the role of restrictive practices in confinement, the article broadens and nuances our understanding of confinement by exploring the daily facilitators of confinement in the lives of people with dementia. The article draws on data from focus groups and interviews with people living with dementia, care partners, aged care workers and lawyers/advocates about Australian care homes. It argues that micro-level interrelated and compounding factors contribute to human rights abuses of people living with dementia related to limits on freedom of movement and community access of people living with dementia, at times irrespective of the use of restrictive practices. These factors include immobilisation and neglect of residents, limited and segregated recreational activities, concerns about duty of care and liability, apprehension of community exclusion, and pathologization and subversion of resistance. It is necessary to challenge the organisational, cultural, economic, and social dynamics that shape day-to-day, microlevel, routine and compounding factors that remove the agency of people living with dementia and in turn facilitate entrenched and systematic human rights breaches in care homes.

Through a case study of the official state representation of the institutional life course of one Indigenous Australian woman who is disabled, I demonstrate that across multiple jurisdictions, legal orders, service systems, material spaces and modes of intervention, law provides for the heightened carceral control of bodies on the basis of their designation as disabled. In being designated as disabled, bodies are positioned as necessarily and legitimately subjected to ongoing, persistent and multifarious control in a way paradigmatic of Foucault’s argument of the policed subject such that the disabled body itself is a carceral site. Moreover, the indefinite detention of disabled Indigenous persons on the basis of their disability builds upon and masks as ‘noncolonial’ settler colonial violence against Indigenous Australians. An analysis of how law orders, constructs and legitimates disabled carceral control troubles current understandings of indefinite detention, illuminates the limited notions of (in)justice that these understandings allow and provides new openings to acknowledging a fuller and more complex range of institutional injustices done to disabled offenders.

Drawing on growing social awareness, activism and scholarship, this article examines menstruation as an equality issue and the implications for discrimination law in Australia. It discusses the complex nature of inequality that arises in relation to menstruation. It also considers intersectional discrimination (when a combination of attributes generates a new form of discrimination) that occurs in relation to menstruation facing different groups: women and girls with disabilities, incarcerated women, and transgender, gender-diverse and intersex people. The article considers how some forms of inequality related to menstruation might be addressed through discrimination law (workplace adjustments and provision of menstrual products in carceral settings) and points to limitations of discrimination law or its application, such as in relation to sterilisation of women and girls with disabilities and strip searching of incarcerated women. It concludes that Australian discrimination law can only have a limited impact in addressing menstrual inequality. This is because: (a) the structure of the law is attribute-based and thus cannot address the complex intersections of sex and other attributes; (b) it cannot address structural inequality; and (c) it cannot adequately contend with embodied and abjected legal subjects. These conclusions have radical implications beyond menstruation inequality in contributing to broader discussions of how law can re-imagine gender difference and advance equality.

This article explores how care homes—and, specifically, their common features such as dementia care units and locked doors and gates—impact on the human rights of people living with dementia. We suggest that congregation, separation and confinement of people living with dementia by the care home built environment constitute ‘segregation’. In the specific context of residential aged care facilities in Australia, we draw on the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) to frame this segregation as an injustice. We focus on the rights to non-discrimination (Article 5), liberty and security of the person (Article 14), equality before the law (Article 12), accessibility (Article 9), and independent living and community inclusion (Article 19). Our analysis shows that addressing segregation must involve structural and resource reforms that are transformative in bringing about new ways of living and relating to each other. Such reforms are directed towards providing meaningful alternatives and appropriate supports to make choices from a range of alternative residency and support options, and building communities that are free from ableism, ageism and other systems of oppression that contribute to confinement and segregation.

International and Australian domestic evidence suggest that the prevalence of violence against people with disability is substantially higher than for the rest of the community. Much of the violence experienced by people with disability in Australia occurs within the
purview of a variety of institutions, including group homes, large residential institutions, Australian Disability Enterprises (that is, disability employment facilities), schools, psychiatric facilities, hospitals and correctional facilities. This comment discusses recent domestic and international legal and political attempts to grapple with the issue of
institutional violence against people with disability, focusing in particular on a series of Senate Committee inquiries into abuse and violence, regulation related to the National Disability Insurance Scheme, the coming into force of the Convention on the Rights of Persons with Disabilities, Australia’s anticipated ratification of the Optional Protocol to the Convention Against Torture and recent calls by Disability People’s Organisations and academics for a Royal Commission into violence against people with disability.

© 2018 Australian Journal of Human Rights. In 2017, Australia ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Ratification of OPCAT presents a. unique opportunity to highlight the institutional treatment of people with disability i. range of sites of detention within Australia and build on advancing international protections for people with disability, including those articulated in the Convention on the Rights of Persons with Disabilities (CRPD). This article considers the opportunity presented by OPCAT for improving protections for people with disability against torture and ill-treatment. The article argues for an expansive definition of ‘sites of detention’ that is able to encapsulate both disability-specific and mainstream settings in which people with disability may be deprived of their liberty, as well as to address specific practices such as the use of mechanical restraint, chemical restraint and seclusion. Based on an analysis of international National Preventive Mechanism (NPM) models, it is further argued that people with disability, their representative bodies and other civil society actors must be meaningfully involved in NPM processes, including in the monitoring of sites of detention, and the identification of systemic issues affecting people with disability with lived experience of detention.

© 2016, © The Author(s) 2016. “Disabling” forensic detention involves challenging the self-evidence of the meaning of disability in forensic mental health law, and in turn illuminating the significance of this meaning to the possibility and permissibility of forensic detention and other interventions in the bodies of people designated with cognitive impairments and psychosocial disabilities (“people designated as disabled”). I apply this approach to an examination of a case study of one individual subjected to forensic detention: an Indigenous Australian woman with Fetal Alcohol Spectrum Disorder, Roseanne Fulton. By examining Fulton’s forensic detention, in the context of her earlier life circumstances and her subsequent journey through various “alternatives” to this forensic detention I show the interrelationships of forensic detention with a range of legal options for punishing, regulating and intervening in designated as disabled bodies and situate these interrelationships in a broader range of issues of violence, institutional failure, social disadvantage, settler colonialism, and ableism. My central argument is that the ongoing subjection of Fulton to a range of forms of control across her life suggest that the possibility of forensic detention and other forms of punishment of people designated as disabled is not attached to a particular material architectural space or a particular court order, but instead attaches to these individuals’ bodies via medico-legal designations as disabled and travels with these individuals through time and space. I propose that more directly it is the disabled body that is the space of punishment and the disabled body makes material architectural spaces punitive. A “reform”, indeed even an “abolition”, approach focused on material architectural spaces of disabled punishment will not interrupt the ongoing processes of control of criminalized people designated as disabled if it does not also acknowledge and challenge the temporal...

© 2017 Informa UK Limited, trading as Taylor & Francis Group. This article explores police responses to sexual violence reported by women offenders designated as having cognitive and psychosocial disabilities. The article does so by reference to the critical disability studies analytical approach to disability as socially constructed ‘abnormality’. This article utilizes this approach in analysing the recorded police contacts of one woman offender designated as disabled, ‘Jane’. Jane has had multiple contacts with police over a period of 15 years as a victim of sexual violence, alleged offender and ‘mentally ill’ person. The article finds that through multiple contacts with police as victim, alleged offender and ‘mentally ill’ person, the police events records build a narrative of Jane as an ‘abnormal’ body who is reduced to a drain on police and public health resources, a dishonest and nuisance offender and an attention seeker. The article argues that it is the interlocking discourses of gender, disability and criminality that produce Jane as unworthy of victim status and, perversely, in need of punishment by the criminal justice system for her public displays of trauma, mental distress and requests for police assistance. Ultimately, the article concludes that we need to give greater attention to the relationship between disability and affect, and to the broader cultural, institutional, legal and economic discourses that shape individuals’ affective responses, in understanding police responses to violence against women offenders designated as disabled and in contesting these women’s status as ‘ungrievable’ victims of violence.

Recent government inquiries and media coverage have illuminated the extent of violence against people with cognitive and psychosocial disabilities in institutional settings. Incredibly, some of this institutional violence is committed with impunity. This is because Australian legal systems effectively facilitate the perpetration of this violence in the form of ‘restrictive practices’. Restrictive practices are typically interpreted as therapy or behaviour management support rather than as violence. This article argues that restrictive practices are in fact forms of violence that are currently being facilitated by law. As such, it encourages lawyers to oppose restrictive practices, including through lobbying for systemic law reform to criminal and civil laws on liability for violence and to join the call led by disabled people’s organisations for a royal commission into violence against disabled people.

A recent suggestion of some disability legal scholars is to provide a non-discriminatory legal framework to regulate non-consensual medical and care interventions in relation to disabled people through adapting the doctrine of necessity. This article rejects this approach through a close reading of the leading decision on the doctrine of necessity in medical and care settings, In re F (Mental Patient: Sterilization) [1990] 2 AC 1. This decision confirms that any such suggestion for the application of the doctrine will impact disabled people differentially due to divergent legal constructions of temporality between disabled and able people. To use this doctrine in relation to ongoing disabled medical and care
interventions the law constructs disabled people as being in a permanent state of mental incapacity. On the other hand, the doctrine of necessity constructs able people as temporarily mentally incapacitated from their usual state of autonomy, thus only requiring minimal medical and care interventions to return them to their prior state. Therefore, able people cannot, under this doctrine, lawfully be subject to similarly long periods of
intervention and such a broader range of interventions. Application of the doctrine of necessity will thus exacerbate inequality of and violence against disabled people.

The United Nations Convention on the Rights of Persons with Disabilities1
(CRPD), which entered into force in May 2008, has been hailed by disability
rights scholars and activists as effecting monumental shifts in the status of
people with disability2 under international human rights law. A key reason
is that the CRPD embodies a ‘social model’ understanding of disability,
focused on systemic factors and barriers to equality, that is in contrast to
the earlier reductive, individualised ‘medical models’ of disability apparent
in international human rights law that legitimated differential treatment
of people with disability on the basis of their purported internal, pathological
deficits.3 Some have even claimed that the CRPD moves beyond a
social model, to introduce a ‘human rights model’ of disability. Theresia
Degener, the current Chair of the United Nations Committee on the Rights
of Persons with Disabilities (the UN Committee), argues that although
the social model holds strong explanatory power in identifying the formation
of disability, it does not affirm the inherent human dignity of people
with disability and attribute them with the capacity to hold human rights
regardless of impairment.4 According to Degener, the human rights model
creates a broader framework for achieving social justice, offering not just an
explanation, but a prescription for change.5 Perhaps time will tell whether
this is true or not, but it is certainly the case that the CRPD is among the
longest and most detailed of all UN human rights treaties, elucidating
rights in the disability context in a range of areas of life, including rights
to work, education, health services, transportation, access to justice, and
accessibility of the physical and social environment

© 2016 Informa UK Limited, trading as Taylor & Francis Group. We take as our point of intervention one category of violence which sits outside the forms of violence against women which are both currently prohibited by criminal law and the focus of violence against women campaigns: non-consensual medical interventions (or, as we refer to it, ‘lawful medical violence’). By drawing on critical disability studies, particularly feminist disability theory, we argue that lawful medical violence has been rendered socially and legally permissible because of the medicalisation of disabled women’s bodies and the related pathologisation of their behaviour and life circumstances. These processes sit at the intersection of gender and disability, drawing on gendered social norms of ability and sexuality to construct women with disability as genderless and dehumanised, and in turn depoliticising non-consensual medical interventions in these women’s bodies by reconstituting them as therapeutic and benevolent. In order to recognise and contest lawful medical violence as violence against women, mainstream feminist scholars and activists might consider turning to different legal, institutional and spatial sites of violence and challenging deeply embedded divisions and foundational concepts in law related to mental capacity.

Since at least the early 1990s, disability rights advocates have argued for the
prohibition of sterilisation of women and girls with disability without their
consent (‘non-consensual sterilisation’) except in that small proportion of
instances where there is a serious threat to life.1
In part, this argument has been
framed in terms of human rights: the act of non-consensual sterilisation (except
where there is a serious threat to life) is fundamentally an act of discrimination
and violence which violates multiple human rights including the rights to
equality and non-discrimination, freedom from torture and personal integrity. In
recent years these arguments have been increasingly supported by international
human rights bodies which have framed non-consensual sterilisation of women
and girls with disability as a violation of human rights and urged states parties,
including Australia, to prohibit the practice.

Diversion from the criminal justice system pursuant to s 32 of the Mental
Health (Forensic Provisions) Act 1990 (NSW) is increasingly being deployed
as a key response to the issues facing people diagnosed with cognitive
impairment and/or mental illness in the criminal justice system. The ‘medical
model’ of disability, which is focused on disability as an internal, individual
pathology, contributes to the marginalisation of people with disability, notably
by providing a legitimate basis for the legal and social regulation of people with
disability through therapeutic interventions. The scholarly field of critical
disability studies contests the medical model by making apparent the social and
political contingency of disability, including the intersection of disability with
other dimensions of politicised identity (such as gender and Indigeneity) and
the role of law and institutions (including the criminal justice system) in the
disablement, marginalisation and criminalisation of people with disability.
Applying critical disability studies to s 32 problematises the characterisation of
the legal subject with diagnosed impairment and this provides a new basis for
questioning the coercion of people with disability through the criminal justice
intervention of diversion. An empirical analysis of the diagnostics,
demographics and criminal justice pathways of a sample of individuals who
have received s 32 orders provides some material foundations for a more
politically and socially directed analysis of s 32 and for a broader reflection on
the role of the criminal law in issues facing people diagnosed with cognitive
impairments and mental illness in the criminal justice system.

The past ten years have witnessed an increased
public awareness of the marginalisation and
discrimination experienced by people with
disability in the Australian legal system, and an
associated proliferation of law reform reports on
disability law.' A particular focus has been legal schemes
applicable to people with disability found lacking
legal capacity. A recent example is the 2014 report
of the Australian Law Reform Commission ('ALRC')
in its inquiry into equality, capacity and disability in
Commonwealth laws.2 Running parallel to these
domestic law reform recommendations, the Convention
on the Rights of Persons with Disabilities' ('CRPD') has
brought about paradigm shifts in legal understandings
of disability and the appropriate treatment of people
with disability. In particular, Article 12 establishes that
people with disability are entitled to legal capacity and
places obligations on States Parties to repeal laws that
deny legal capacity. Legal capacity has been recast as an
international human rights issue, central to recognising
the equality of people with disability under domestic
legal systems.
Bringing these two trajectories in disability law
together, in this article we consider how the ALRC's
recommendations fare by reference to the human
rights advancements reflected in the CRPD, and in
particular the approach to capacity. The article argues
that the ALRC's recommendations do not go far
enough in recognising the right to legal capacity, in
particular due to a lack of clarity about how a shift to
supported decision-making may be implemented and
a failure to explicitly address the problematic role of
mental capacity and how it may continue to inform
the implementation of any new laws developed. It
also considers the need for policy and cultural change
to ensure that any new laws developed are not
implemented in a manner that contravenes the CRPD

Increasingly, attention in Australia is focusing on the role of
postgraduate student research groups in higher degree research
(HDR) student learning and experience.1
The current research
project was aimed broadly at the evaluation of HDR groups, and
was directed towards informing development of an interdisciplinary
group around criminology, criminal law and criminal
justice (the Crim* Network: http://crimstarnetwork.com/) based
within the Law Faculty at the University of Sydney. Specifically, it
sought to ensure the Network developed within a pedagogicallyinformed
structure, and was sustainable in the long-term with
potency for growth and outreach beyond the host faculty and
institution

© 2015 Griffith University. This article analyses the place of the intersections of the criminal law of assault and the Family Court's welfare jurisdiction in rendering Family Court authorised sterilisation of girls with intellectual disability a legally permissible form of violence. The article does this by examining court authorised sterilisation of girls with intellectual disability by reference to the concepts of ‘legal violence’ and ‘abnormality’. The article's central argument is that Family Court authorised sterilisation of girls with intellectual disability is a form of lawful and ‘good’ violence against abnormal legal subjects. Such girls are – by reason of their incapacity – positioned outside the group of ‘normal’ legal subjects of assault who have the capacity to decide to consent to contact with their otherwise ‘impermeable’ and legally sacrosanct bodies. As the girls with intellectual disability are deemed to constitute ‘abnormal’ legal subjects of assault, the lawfulness of the contact involved in the act of their sterilisation is not dependent on the consent of the girls themselves, but instead on the consent of their parents as authorised by the Family Court acting in its welfare jurisdiction. In the course of authorising parental consent to sterilisation, the Family Court not only renders an act of sterilisation ‘lawful violence’, but also ‘good violence’ through the characterisation of girls with intellectual disability as absolutely different to individuals without disability, and through the characterisation of the act in legal, familial and medical terms.

© 2015 Griffith University. This special issue of the Griffith Law Review is dedicated to an examination of the relationships and intersections between disability, criminal law and legal theory. Despite the centrality of disability to the doctrines, operation and reform of criminal law, disability continues to inhabit a marginal location in legal theoretical engagement with criminal law. This special issue proceeds from a contestation of disability as an individual, medical condition and instead explores disability's social, political and cultural contexts. This kind of approach directs critical attention to questioning many aspects of the relationships between disability and criminal law which have otherwise been taken for granted or overlooked in legal scholarship. These aspects include the differential treatment of people with disability by criminal law, the impact of core legal concepts such as capacity on criminal legal treatment of people with disability, and the role of disability in ordering and legitimising criminal law. It is hoped that the special issue will contribute to the shifting of disability from its peripheral location in legal theoretical scholarship much more to the centre of critical and political engagement with criminal law.

The current legal framework governing restrictive practices in schools regulates, rather than prohibits, restrictive practices. The central aim of this chapter is twofold: (i) to provide an overview of the legal framework of the use of restrictive practices in schools, and (ii) to identify some critical entry points into questioning the self-evidence of this legal framework and consequently reframe restrictive practices in schools as a lawful form of institutional violence. The chapter begins by introducing restrictive practices in schools and then provides an overview of the current legal framework that regulates the use of restrictive practices, and ultimately positions these practices beyond legal definitions of unlawful violence and hence beyond legal liability. The chapter then discusses the United Nations Convention on the Rights of Persons with Disabilities and recent Australian government inquiries, which provide a strong policy basis for viewing restrictive practices as violence, which should be prohibited.

Court-authorised sterilisation of women and girls with disability has been widely criticised by disability rights advocates and international human rights bodies as a form of violence and discrimination. This chapter examines the Family Court of Australia’s power pursuant to its ‘welfare jurisdiction’ to authorise parental consent to non-therapeutic sterilisation of girls with disability. The chapter locates the Family Court’s welfare jurisdiction at the intersections of health law, family law and Australian Constitutional law, and draws on critical disability studies approaches to disability and critical legal approaches to jurisdiction in order to explore how the judiciary is positioned to legitimately permit the violence of sterilisation. The chapter engages in a close analysis of the majority judgments in two leading High Court of Australia decisions on sterilisation: Secretary, Department of Health and Community Services v JWB (1992) (Marion’s Case) and P v P (1994). The chapter argues that judicial authority to permit sterilisation both shores up limits and gaps in the scope of state authority vis-à-vis disabled girls’ bodies and individualises and privatises the injustices of sterilisation. This argument signals the need for greater engagement with discourses of humanitarianism, care and flourishing, particularly when these discourses are mobilised by law in coercive and violent contexts against people with disability.

This paper explores alternative spaces for learning amongst postgraduate research (PGR) students in the form of research-related groups such as reading and discussion groups, writing groups, seminar series or social groups. Our research with PGR students and academics explores the pedagogy and role of such groups in student learning and identity formation. In this paper, we discuss our findings related to PGR student needs and the factors prompting the formation of research-related groups. A survey of 36 PGR students revealed that students were reasonably satisfied with the formal components of their research degrees such as supervision and mandatory units of study. Yet general dissatisfaction with other opportunities for intellectual engagement, and feelings of isolation, were also prevalent. We hypothesise that though a majority of students might feel supported to complete their higher research degree, they are not necessarily feeling supported in the transition to becoming scholars or in developing broader scholarly interests and networks. As other academic literature has opined, research-related student groups can fulfil a dual function, assisting students towards completion of their research degree but also socialising students into academia. This paper discusses the role that higher education institutions and faculties might play in supporting research-related groups. In particular, there is a balance to be achieved between facilitating groups and enabling sustainability while ensuring that PGR students maintain autonomy and a reciprocal degree of responsibility in governance of such groups, which are key to developing an academic identity.

2019 Australian Heritage Festival Curated Talks program, Urban Growth NSW