Therapeutic Jurisprudence, juvenile justice and the UN Convention on the Rights of the Child : do they coexist?

The UN Convention on the Rights of the Child provides children and young people with over 40 substantive rights, the five outcomes of which are living a healthy lifestyle, staying safe, enjoying and achieving, making a positive contribution, and economic wellbeing. Moreover, Article 3 dictates that all organizations concerned with children should work towards what is best of each child. It is not clear how these rights translate to the care of children and young people who come before the courts (particularly those who are subsequently incarcerated). A review of the literature suggests that while best practice guidelines for the treatment and rehabilitation of adult offenders has moved forward, there is little consensus about how this might be achieved for young people. Therapeutic Jurisprudence (TJ) needs to extend beyond its current considerations of the rights of children and young people, and to expand its focus to the extent to which international human rights standards are complied with in the cases of juveniles in the criminal justice system. This presentation will (a) explore the extent to which current practices in juvenile justice are consistent with the UN's Convention and (b) whether the adoption a rehabilitative and treatment approach based on a TJ framework might serve to improve outcomes for young people and ensure their rights are not being violated.

Child play therapists’ understanding and application of the United Nations Convention on the Rights of the Child: a narrative analysis

Narrative inquiry was used to explore the ways in which play therapy practitioners understand and uphold the UN Convention on the Rights of the Child in their practice. Seven play therapy practitioners responded to questions about their experiences of working within a rights-based framework. Analysis of their responses revealed 5 themes: Child play therapy upholds Article 39; respondents demonstrated an implicit rather than explicit understanding of children’s rights; children are sometimes perceived only in terms of their behaviors; there can be a tension between the rights of the child and adults’ rights; and therapists aim to support children’s right to choice, privacy, and confidentiality, but this is not always easy. These findings are intended to support further development of curriculum and course content for trainee therapists and professional development for practitioners. The results add further evidence regarding the need to engage a rights framework when developing policy for early years therapeutic support services.

Human rights and rehabilitation outcomes

Purpose. The aim of this article is to introduce rehabilitation professionals to the rapidly growing literature on human rights particularly as it relates to health and rehabilitation. The article aims to stimulate further discussion and debate concerning the place of human rights in rehabilitation practice.

Method. Some important milestones in the recent history of the human rights movement are briefly outlined, and some important terms in the rights literature are explained. The Ward and Birgden model of the structure of human rights is then described as an example of a rights perspective that might have particular relevance for health and social services and rehabilitation.

Results. A rehabilitation case study is presented as an example of how the Ward and Birgden model could have practical relevance when deciding on the most important outcomes for an individual in rehabilitation.

Conclusion. Human rights are playing an increasing role in the struggle to improve health and healthcare globally. They also have important implications for rehabilitation practitioners and researchers and should form the core of any ethical framework for rehabilitation. It might even be argued that rights and dignity are themselves valued outcomes for rehabilitation.

Human rights and forensic psychology

Objectives. Human rights serve to orientate practitioners to the necessary conditions for a minimally worthwhile life for service users, the prerequisites for a life of dignity and a chance at happiness, and the opportunity to incorporate into their life plans cherished values and goals. In this introduction to the special section paper, I discuss the basic concept of human rights and outline their relevance for clinical practice with offenders.

Method. I explore the core values associated with human rights and suggest that one of their primary functions is to protect the internal and external conditions of individuals' agency and their pursuit of better lives.

Conclusion. I briefly outline the three articles comprising this special section of LCP on human rights that address issues of risk, therapeutic jurisprudence, and the rights of detained persons.

Human rights performance reporting : a study of corporations within Australian financial sector

This paper investigates the human rights performance reporting practices of the top 50 Australian financial service companies listed in the Australian Stock Exchange. All corporate reporting media, including annual reports, Social Responsibility Reports (CSR) and company websites, were reviewed to document their disclosure practices for the current period (2009/2010). In considering a number of international voluntary guidelines on human rights, a content analysis instrument containing 80 specific human rights themes, under 10 general categories, was developed to examine corporate reporting media. The results remain intensely unimpressive. The number of companies that disclosed human rights items is extremely low; the majority of the items were not disclosed by any of the companies under investigation. However, compared to CSR reports and company websites, annual reports were the preferable media used to disclose human rights issues. The result indicates how ineffective the voluntary global guidelines are in ensuring that Australian financial corporations report on their human rights performances.

Islam and human rights in practice: perspectives across the Ummah

Questions over the compatibility of Islam and Human Rights have become a key area of debate in the perceived tensions between ‘Islam and the West’. In many ways, discussion over the stance of Islam in relation to such factors as gender rights, religious freedom, social and political freedoms, and other related issues represents a microcosm of the broader experience of how Muslim and ‘Western’ communities interact and relate. This volume seeks to engage with the various debates surrounding Islam and Human Rights, in particular, challenging assumptions of a ‘standard’ or ‘essential’ Muslim perspective on Human Rights. Through a survey of the experiences of Muslim communities across the globe (the ummah), this volume highlights the dynamic way Muslims understand and incorporate Human Rights into their personal, social and political experiences. From conceptual discussions on the issues of gender rights and religious freedom, to examining Muslim communities from South East Asia, Central Asia, the Middle East and North Africa, leading global experts bring forth key insights into the way in which Muslim communities live and experience Human Rights. The potential for deeper engagement with this issue is critical, as it opens possibilities for more profound understanding and tolerance.

Spare the rod and spoil the child : should the abolition of corporal punishment be reversed?

The classic English case of Williams v Eady (1893) had, for over a century, supported a teacher acting in loco parentis when inflicting punishment on a child, so long as the punishment was reasonable and given in good faith. But in response to the European Convention on Human Rights, which calls for all to respect a child’s right not to be “subject to torture or to inhumane or degrading treatment” (Article 3), many countries have banned the practice of using corporal punishment in schools. This might even include the use of reasonable force to prevent a student from injuring others or causing damage to property if it is seen as a form of discipline or punishment. Schools, therefore, have a difficult task of striking a balance between providing a safe environment for the whole school community and a child’s individual rights. This paper gives an overview of the trends in the United States, Australia, New Zealand, England, Canada and Singapore concerning corporal punishment, and then discusses the implications for employing or banning corporal punishment as a disciplinary strategy. The discussion takes on a brief jurisprudential analysis of this issue: that is, whether, corporal punishment, if carried out reasonably, is seen as a proper form of discipline, ensuring a safe and disciplined environment in which the school community, as a whole, might operate. Is the teaching profession over regulated in the area of physical discipline? If so, would the continuation or reintroduction of corporal punishment make sense, or would it make education an even riskier business?

Corporal punishment - archaic or reasonable discipline method?

The classic English case of Williams v Eady (1893) had, for over a century, supported a teacher acting in loco parentis when inflicting punishment on a child, so long as the punishment was reasonable and given in good faith. But in response to Article 3 of the European Convention on Human Rights ('ECHR '), which calls for all to respect a child's right not to be 'subject to torture or to inhumane or degrading treatment', many countries have banned the practice of using corporal punishment in schools. This might even include the use of reasonable force to prevent a Student from injuring others or causing damage to property if it is seen as a form of discipline or punishment. Schools, therefore, have a difficult task of striking a balance between providing a safe environment for the whole school community and a child's individual rights. This paper gives an overview of corporal punishment trends in the United States (US), Australia, New Zealand, England, Canada and Singapore, and then looks briefly at the jurisprudence of the courts on this issue. It then discusses the implications for employing or banning corporal punishment as a disciplinary strategy, and in particular whether corporal punishment, if carried out reasonably, could be considered a reasonable form of discipline, ensuring a safe and disciplined environment in which the school community, as a whole, might operate.

Where the home in valley meets the damp dirty prison : a human rights perspective on therapeutic jurisprudence and the rule of forensic psychologists in correctional settings

The roles of forensic psychologists in coerced environments such as corrections include that of treatment provider (for the offender) and that of organizational consultant (for the community). This dual role raises ethical issues between offender rights and community rights; an imbalance results in the violation of human rights. A timely reminder of a slippery ethical slope that can arise is the failure of the American Psychological Association to manage this balance regarding interrogation and torture of detainees under the Bush administration. To establish a “bright-line position” regarding ethical practice, forensic psychologists need to be cognizant of international human rights law. In this endeavor, international covenants and a universal ethical code ought to guide practice, although seemingly unresolveable conflicts between the law and ethics codes may arise. A solution to this problem is to devise an ethical framework that is based on enforceable universally shared human values regarding dignity and rights. To this end, the legal theory of therapeutic jurisprudence can assist psychologists to understand the law, the legal system, and their role in applying the law therapeutically to support offender dignity, freedom, and well-being. In this way, a moral stance is taken and the forensic role of treatment provider and/or organizational consultant is not expected to trump the prescriptions and the proscriptions of the law.

Does Australia's treatment of non-citizens accord with its international human rights obligations? with specific reference to the treatment of on-shore refugees

The son of immigrants, I was motivated to write a paper addressing the issues of alienation and discrimination which confronts non-citizens upon arriving in Australia. Apart from descendants of Australia's indigenous population, the common bond shared by all citizens and permanent residents of Australia is that they are either themselves immigrants or are descended from immigrants. In this paper I will look at whether Australia's law and practice meets its international human rights treaty and convention obligations vis-a-vis non-citizens. To investigate this issue I trace the history of immigration to Australia and look at the political policies which influenced the treatment of non-citizens from 1788 to present times. In 1958 when my parents stepped upon Australian soil as displaced persons, Australia was a very different place from Australia in the 1990s. At that time Australia was still firmly under the influence of the 'White Australia Policy' which openly encouraged discrimination against non-anglo saxons. Since those times Australia has advanced to become one of the most culturally diverse nations in the world where multiculturalism is encouraged and a non-discriminatory immigration program is supported by both Australia's major political parties. However, notwithstanding the great social advances made in Australia in recent decades the traditional legal sources of law, namely, judicial pronouncements, statutes and the Commonwealth Constitution have not kept pace and it is my submission that Australia's body of law inadequately protects the rights of non-citizens when compared to Australia's international human rights convention and treaty obligations. This paper will consider these major sources of law and will investigate how they have been used in the context of the protection of the rights of non-citizens. It will be asserted that the weaknesses exposed in the Australian legal system can be improved by the adoption of a Bill of Rights1 which encompasses Australia's international human rights treaty and convention obligations. It is envisaged that a Bill of Rights would provide a framework applicable at the State, Territory and Federal levels within which issues pertaining to non-citizens could be resolved. The direction of this thesis owes much to the writings, advice and supervision of Dr. Imtiaz Omar who was always available to discuss the progress of this work. Dr. Omar is a passionate advocate of human rights and has been a tremendous inspiration to me throughout my writing. I owe a debt of thanks to the partners of Coulter Burke who with good nature ignored the sprawl of books and papers on the boardroom table, often for days at a time, thus enabling me to return to my writing from time to time as my inspirational juices ebbed and waned. Thanks also go to my typists Julie Pante, Vesna Dudas and Irene Padula who worked after hours and on weekends always without complaint, on the various versions of this thesis. My final acknowledgement goes to my wife Paula who during the years that I was working on this thesis encouraged me during my darker moments and listened to all my frustrations yet never doubted that I would one day complete the task successfully. I wish to thank her wholeheartedly for her motivation and belief in my abilities. The law relied upon in the thesis is as at the 30th June, 1998. Bill or Charter of Rights 'are taken to be enactments which systematically declare certain fundamental rights and freedoms and require that they be respected'. See Evans, G. 'Prospect and Problems for an Australian Bill of Rights' (1970) 3 Australian Year Book of International Law 1 at 16. Some such notable exception is the New Zealand Bill of Rights Act 1990, contained in an ordinary statute.

Limiting the list : human rights and intangible cultural heritage

UNESCO's Convention for the Safeguarding of Intangible Heritage came into force in April 2006, signalling a major expansion of the global system of heritage protection from the tangible to the intangible. It is an expansion that some heritage professionals see as opening up a Pandora's box of confusions and complexities. The conservation of inanimate objects tangible sites and monuments and artefacts - is difficult enough; but the protection of heritage embodied in people raises new sets of ethical and practical issues. The paper canvasses these concerns and focuses on how the notion of human rights must be used as a way of limiting and shaping the Intangible List. In particular it outlines the ways in which the protection and preservation of cultural heritage is linked to 'cultural rights' as a form of human rights. This linkage is not clearly recognised by cultural heritage practitioners in many countries, who view their work merely as technical, or even by human rights workers, despite the abundance of opportunities around the world to witness people struggling to assert their cultural rights in order to protect their heritage and identity.

The impact of religious diversity and revitalization on inter-religious education for citizenship and human rights

The unanticipated rise of religious diversity and the re-entry of religion to the public sphere have radically increased the need and demand for education about religions – how they contribute to social and cultural capital – and about the management of religious diversity. The global movement of people and cultures has brought religious diversity to nearly every major city. With diversity has come a renewed interest in the religious identity of others and how to incorporate religious diversity in ways that produce social cohesion. Religious diversity has also raised interest in a values discourse where once atheistic secularity prevailed, made faith-based social and health service delivery both more appealing to governments and more difficult to deliver, and has challenged societies to accommodate a wider range of religious needs and lifestyles. Policies designed to promote social justice and peace have little chance of success without taking seriously the religious dimensions to the issues involved. This context makes clear the need for opportunities to learn about the religions in a society at all levels of education – opportunities that include direct experience of the ‘other’, curricula that appreciate the worlds of faith, spirituality and religion rather than demeaning them, education that provides both historical depth and local reality. Some of this education will be in school, some in remedial work required for a generation or two of leaders who have been raised in ignorance of religion, or trained to despise it.