'The witness who saw, /He left little doubt' : a comparative consideration of expert testimony in mental disability law cases in common and civil law systems

The question of how courts assess expert evidence - especially when mental disability is an issue - raises the corollary question of whether courts adequately evaluate the content of the expert testimony or whether judicial decision making may be influenced by teleology (cherry picking evidence), pretextuality (accepting experts who distort evidence to achieve socially desirable aims), and/or sanism (allowing prejudicial and stereotyped evidence). Such threats occur despite professional standards in forensic psychology and other mental health disciplines that require ethical expert testimony. The result is expert testimony that, in many instances, is at best incompetent and at worst biased. The paper details threats to competent expert testimony in a comparative law context - in both the common law (involuntary civil commitment laws and risk assessment criminal laws) and, more briefly, civil law. We conclude that teleology, pretextuality, and sanism have an impact upon judicial decision making in both the common law and civil law. Finally, we speculate as to whether the new United Nations Convention on the Rights of Persons with Disabilities is likely to have any impact on practices in this area. Copyright © 2009 John Wiley & Sons, Ltd.

Visual discrimination and reproduction of movement by individuals with an intellectual disability

This study investigates the capacity of individuals with an intellectual disability to make accurate discriminations of computer-generated displays and also to reproduce the characteristics of those displays. The findings suggest that the learning of everyday motor skills in this population may be hampered by difficulties in visually perceiving important characteristics of the demonstration. Procedures, employed for teaching these skills to intellectually disabled, are being reassessed in the light of these findings.

Remedying discrimination : the limits of the law and the need for a systemic approach

Very few discrimination complaints reach the courts each year. As with other civil litigation, the reasons for this include the cost of pursuing litigation and, particularly for complainants, the risk of losing or receiving less than the complainant could have negotiated prior.

Drawing on interviews with lawyers and non-legal advocates in Victoria and an analysis of successful cases in three jurisdictions, this article examines the remedy the court is likely to award in a successful discrimination complaint and considers the effect of this on the eradication of discrimination in society. A comprehensive examination of the remedies awarded in successful discrimination complaints in Victoria over a three year period shows that courts are most likely to order compensation at modest amounts and complainants are not regularly awarded their costs. A comparison with Queensland and the federal system reveals a similar experience. Even in those jurisdictions where wider remedies are available, courts rarely take the opportunity to make broad orders which could affect other similarly situated individuals or deter would-be respondents.

While it is necessary to remedy the complainant’s experience, it is also necessary to address broader, systemic discrimination and a compensation award cannot do this. Remedying discrimination with compensation is primarily a problem because it is reactive. Compensation does not address other instances of discrimination in society or achieve systemic change nor does it encourage compliance because the respondent is not required to take anticipatory action to prevent another complaint.

Based on the interpretive principles and extensive remedies provided in South Africa’s recent anti-discrimination and a study of remedies ordered by the South African Equality Courts and the Irish Equality Tribunal, the article proposes reforms to Australia’s anti-discrimination legislation to enable courts to make wider orders which target other instances of discrimination in addition to remedying the complainant’s experience.

The problem of voluntariness: parents and the anti-discrimination principle

Examines the theoretical justifications for the anti-discrimination protection for working parents in Australia. Implication of discrimination, voluntaries and employment; Analysis of the tort principles; Factors affecting the justification for protecting working parents.

The effect of intellectual disability on children's recall of an event across different question types

This research examined the performance of 80 children aged 9–12 years with either a mild and moderate intellectual disability when recalling an innocuous event that was staged in their school. The children actively participated in a 30-min magic show, which included 21 specific target items. The first interview (held 3 days after the magic show) provided false and true biasing information about these 21 items. The second interview (held the following day) was designed to elicit the children's recall of the target details using the least number of specific prompts possible. The children's performance was compared with that of 2 control groups; a group of mainstream children matched for mental age and a group of mainstream children matched for chronological age. Overall, this study showed that children with either a mild or moderate intellectual disability can provide accurate and highly specific event-related information. However, their recall is less complete and less clear in response to free-narrative prompts and less accurate in response to specific questions when compared to both the mainstream age-matched groups. The implications of the findings for legal professionals and researchers are discussed.

The eradication of compulsory retirement and age discrimination in the Australian workplace : A cause for celebration and concern

Earlier this year the Age Discrimination Act 2004 was passed by the Commonwealth government. This paper provides an overview of the Age Discrimination Act 2004 and critically examines whether it is likely to be successful in eradicating compulsory retirement and age discrimination within the workforce. Empirical studies suggesting that law reform alone is insufficient to eliminate ageist employer behaviour are discussed as is the need for public awareness campaigns. Given that compliance with the law is closely linked with normative belief, this paper also considers whether a moral duty to refrain from age discrimination can be grounded within the natural law ethic.

State sovereignty and migration control: the ultimate act of discrimination?

Nations zealously guard their borders and carefully vet migrants. This consigns many people to live in states not of their choice and often diminishes their opportunities and their level of flourishing. In some cases it is the difference between life and death. The practice of imposing migration controls is discriminatory. In fact it is the ultimate form of discrimination: 'super-discrimination.' There is no logical or moral reason why non-nationals of a state should not have the same opportunities and freedoms as nationals in that state. One of the most common forms of discrimination is race - treating a person differently simply because of their place of birth. This is one of the clearest and most repugnant forms of discrimination because the location where a person is born is of course merely a happy or unhappy circumstance over which the individual has no control. An accident of birth should not qualify a person for extra privileges or opportunities. The world is a fairer place if to the maximum extent possible luck is taken out of the process for allocating benefits and burdens - which ought to be distributed on the basis of merit and dessert. This paper examines whether there are sound reasons for restricting the flow of world-wide people movement. The main arguments in favour of this policy, relating to security and national building, are ultimately flawed. This exposes a tragic irony given the great efforts that many Western states - which typically have the strongest migration controls - make to stamp out discrimination at the domestic level, and the vast array of international law anti-discrimination instruments, loudly trumpeted by Western nations. This is hypocrisy nearing its finest. The substratum of sovereign states upon which available international law is built is inherently discriminatory and in fact is probably responsible for more harm as a result of the innately discriminatory immigration policies than results from the cumulative operation of all domestic discrimination. The world should move towards loosening migration controls. This would have an enormous number of humanistic benefits, not the least of which is largely eradicating world hunger and poverty.

Discussing sex at work can be a costly business: Translating the science, language and law behind M v A & U (2007) QADT 8...

On 16 March 2007, in the matter of M v A & U [2007] QADT 8, the Anti-Discrimination Tribunal of Queensland found that a complaint of discrimination in the supply of goods and services had been made out by the complainant on two grounds: her female sex and lawful sexual activity. The decision would have been quite unremarkable except that ‘M’, as the complainant was known for the purposes of the hearing, is a woman of difference, one who had unusually arrived at her legal female state by completing the sex reassignment process now more commonly described as ‘sex affirmation’.

This article seeks to elaborate on the language and law of transsexualism used by the Tribunal. Its aim is to enhance practitioners’ understanding of the legal and social issues peculiar to those who affirm a sex opposite that first assigned to them so that those practitioners may better interpret the law to their clients. As the instant decision shows, the failure by an employer to take reasonable steps to avoid infringing the Anti-Discrimination Act 1991 (Qld), either on its own part or by the actions of its employees, can prove a costly business indeed.

The author offers a brief synopsis of the current medical viewpoint regarding transsexualism and reviews recent Australian legal developments in the jurisprudence. She reminds practitioners that the Anti-Discrimination Act 1991 (Qld) has since been further strengthened by the inclusion of ‘gender identity’ as a protected attribute, and concludes by proposing the existence of a heightened duty on the part of practitioners to ensure business clients are aware of the full extent of their legal obligations to not discriminate against employees or clients.

HIV discrimination : integrating the results from a six-country situational anaylsis in the Asia Pacific

The findings of the six independent studies on institutional forms of HIV discrimination in the Asia Pacific presented in this Special Issue of AIDS Care are integrated. At first glance, the general pattern of the results across the study sites suggests that discrimination is most pertinent in the domain of 'practice' rather than in the domains of law or institutional policy. On closer analysis, however, utilising the qualitative data, this conclusion does not take sufficient account of the cultural context within which the interpersonal interaction (practice) between the health carers and people living with HIV/AIDS occurs. Limitations on the use of anti-discrimination legislations and protective written policies for reducing discrimination in these contexts are discussed. The need for alternative approaches to thinking about discrimination intervention is raised and this is done through a consideration of the strategy of universal precautions.

Learning and teaching about disability

This thesis examined in-service education as a context for teachers and students to recognise and challenge ableism. It identified conditions that either promote consciousness of discrimination or maintain ableist beliefs and practices. The studies expose the role of ableism in constructing inequality, and highlight the change process individuals can experience.

A narrative study of migrant women and Australian law

This thesis found that the migrant women it studied experienced everyday, discrimination-related hardships and legal problems which the law only partially resolved. It concluded that discrimination was an invisible issue with serious personal consequences for these migrant women.

Why has the rising economic tide failed to float the disability employment boat? A call to action : business,community, government and people power

It is well established that people with disabilities are under-represented in the workforce. Disability labour market scholars agree that there is a significant gap between labour market participation of people with disabilities and people without disabilities, with on-going labour market disadvantage widely reported. All indicate that notwithstanding the recent economic growth of Western economies, the employment rate for people with disabilities has not improved. This paper draws on the findings of three recent research projects on disability employment in Australia and on data from contemporary literature on workplace discrimination and proposes that a combination of more robust social inclusion policies and legislation, revitalised supported employment models, intensive social marketing, and radical disability advocacy is required.

Behind the conciliation doors : settling discrimination complaints in Victoria

Settling of discrimination complaints prior to substantive hearing - study of settled complaints in Victoria in the period 2006-07 - use of alternative dispute resolution mechanisms - why parties settle rather than litigate - outcomes of settlement - recommendations for reforming Australia's anti-discrimination laws.