Disability Law in a Pandemic: The Temporal Folds of Medico-legal Violence

Disabled people are subject to disability laws – such as guardianship, mental health and mental capacity legislation – which only apply to them, and which enable legal violence on the basis of disability (‘disability-specific lawful violence’). While public health laws during the COVID-19 pandemic enabled coercive interventions in the general population, disabled people have additionally been subject to the continued, and at times intensified, operation of disability laws and their lawful violence. In this article we engage with scholarship on law, temporality and disability to explore the amplification of disability-specific lawful violence during the pandemic. We show how this amplification has been made possible through the folding of longstanding assumptions about disabled people – as at risk of police contact; as vulnerable, unhealthy and contaminating – into the immediate crisis of the pandemic; ignoring structural drivers of oppression, and responsibilising disabled people for their circumstances and the violence they experience

Submission to the Senate Community Affairs References Committee Inquiry into violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability (26 June)

This submission is made to the Senate Community Affairs References Committee’s (‘Senate Committee’) inquiry into violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability (‘the Senate Inquiry’)

Disability, abnormality and criminal law: sterilisation as lawful and \u27good\u27 violence

This article analyses the place of the intersections of the criminal law of assault and the Family Court\u27s 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 \u27legal violence\u27 and \u27abnormality\u27. The article\u27s central argument is that Family Court authorised sterilisation of girls with intellectual disability is a form of lawful and \u27good\u27 violence against abnormal legal subjects. Such girls are - by reason of their incapacity - positioned outside the group of \u27normal\u27 legal subjects of assault who have the capacity to decide to consent to contact with their otherwise \u27impermeable\u27 and legally sacrosanct bodies. As the girls with intellectual disability are deemed to constitute \u27abnormal\u27 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 \u27lawful violence\u27, but also \u27good violence\u27 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

Submission to United Nations Committee on the Rights of Persons with Disabilities Draft General Comment on Article 12 – Equal Recognition Before the Law

We support the Draft General Comment on Article 12 – Equal Recognition Before the Law (‘Draft General Comment’). Our submission is primarily concerned with drawing the Committee’s attention to issues around mental capacity. We argue that despite the Committee’s urging in the Draft General Comment for a split between legal capacity and mental capacity, mental capacity (and the related disciplines, professions, institutions and practices of psychology, psychiatry and neuropsychology through which mental capacity is defined and assessed) will continue to have cultural and material significance to the realisation of article 12 and the human rights of people with disability generally. We therefore make a number of recommendations concerning how the Committee might address mental capacity in the General Comment

Enabling Justice: A Report on Problems and Solutions in Relation to Diversion of Alleged Offenders with Intellectual Disability from the New South Wales Local Courts System

This report has its origins in a research paper written by Andrew Howell during an internship at the Intellectual Disability Rights Service during 2006. Linda Steele, Solicitor at the Intellectual Disability Rights Service, was then responsible for reworking the paper into the current report during 2007 and 2008. The authors would like to thank all of the individuals who participated in the consultations and the Government stakeholders who provided their views on the recommendations. The authors would also like to give particular thanks to Jim Simpson, Associate Professor Eileen Baldry, Jane Sanders, Tamara Sims, Peter McGhee and Janene Cootes for their valued contributions throughout the process. The authors also wish to thank Freehills for its generous assistance in the formatting and printing of the report

Representing clients with intellectual disability

People with intellectual disability constitute approximately 2-3% of the Australian population.\u27 They are disproportionately represented in the legal system due to their vulnerability to factors such as poverty, violence, social isolation, discrimination and exploitation.2 Nearly one-quarter (23.6%) of those appearing before six Local Courts in NSW in relation to criminal charges could be diagnosed as having an intellectual disability, with a further 14.1% of persons in the borderline range of ability.3 Given the likelihood of encountering clients with an intellectual disability, both an awareness of what this means and the necessary skills to represent them effectively are highly relevant to plaintiff lawyers

Human Rights and Disability Advocacy. By Maya Sabatello and Marianne Schulze

The United Nations Convention on the Rights of Persons with Disabilities (“the Convention”) which entered into force on May 3, 2008 has been hailed as marking a “paradigm shift” both in relation to how international human rights treaties are developed (from state-centric to participation by Disabled Persons’ Organisations and Non-Governmental Organisations and how international human rights law approaches disability

Disabling forensic mental health detention: the carcerality of the disabled body

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\u27s 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\u27 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 and carnal logics underpinning the carcerality of the disabled body itself

Making sense of the Family Court\u27s decisions on the non-therapeutic sterilisation of girls with intellectual disability

It is well established in Australian family law that the welfare jurisdiction of the Family Court of Australia permits the non-therapeutic1 sterilisation of a girl with an intellectual disability2 where this is in the girl\u27s \u27best interests\u27 and is a\u27step of last resort\u27.3 Section 67ZC of the Family Law Act 1975 (Cth) (the Act) vests the court with jurisdiction to make orders relating to the \u27welfare of children\u27 where those children are \u27children of [a] marriage\u27.4 In deciding whether to make an order, the\u27best interests of the child\u27 is the \u27paramount consideration\u27.5 Section 67ZC was inserted into the Act as part of the broad scale amendments effected by the Family Law Reform Act 1995 (Cth) (the Reform Act). Prior to this time, from 1987 onwards, ss 63 and 64 of the Act (as it then was) conferred jurisdiction on the court vis-a-vis \u27proceedings in relation to the custody, guardianship or welfare of, or access to, a child\u27. Section 60F(2) limited this jurisdiction to \u27a child of a marriage\u27. In a series of decisions made prior to the Reform Act, the court held that the exercise of the welfare jurisdiction extends to the making of orders relating to the sterilisation of a child of a marriage.6The legal test for making orders relating to sterilisation was settled by the High Court in Marion\u27s case.7 Where a child cannot give informed consent to the procedure, his or her parents can only consent to a sterilisation procedure if its purpose is therapeutic.8Where its purpose is non-therapeutic, only the court can consent,9 and will only consent, where the procedure is in the best interests of the child and is a step of last resort.10 In P v P11 it was held that the Family Court\u27s jurisdiction to make orders relating to the sterilisation of a child of a marriage was within the Commonwealth\u27s legislative power because the sterilisation of a child directly arises out of, and is itself an aspect of, the marriage relationship of the parents of the child, and it directly concerns parental rights and the custody or guardianship of infants in relation to divorce or matrimonial causes