Australian Law Reform Commission in 1994 in its study of women and equality before ...... Queenâs University, Belfast, 21-23 January 2009, available online at.
Sydney Law School Legal Studies Research Paper No. 09/77 September 2009
Women and Immigration Law Mary Crock This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1469756.
Electronic copy available at: http://ssrn.com/abstract=1469756
WOMEN AND IMMIGRATION LAW Mary E Crock Abstract: This paper explores the impact of Australia‟s migration laws on women migrants. It begins with some brief comments about record keeping and awareness of gender issues within different political administrations. It attempts a balanced account of the impact of immigration law and policy on women. It recounts positive gains that have been made for women migrants in terms of access to residency; social entitlements and particular measures taken to protect vulnerable populations of women migrants. It considers aspects of law and policy that have had obviously negative impacts – most notably the regime for granting temporary protection to certain asylum seekers; immigration detention; and “offshore” refugee processing. It then examines the gender impacts of law and policy that are less obvious, using skilled migration as a case study. These laws are interrogated for their propensity to impact differentially on women in ways that entrench gender roles.
1
Introduction Many a drayman or shearer on his once a year visit to Sydney had gone down to the ships, hoping to find a wife there, as was only in the course of all nature – Now the shearing is all over, and the wool is coming down, I mean to get a wife, me boys, when I go to town. For each thing has a wife that presents itself to view From the little paddy melon to the big Kangaroo. but his hopes were usually disappointed, and he had to be satisfied with a visit to a doxy in the rocks or a few days „on the spree‟.1
In the earliest days of Australian settlement, the gendered nature of immigration was a matter of great and obvious concern. The Census of 1841 showed “a deficit of 38,962 females”, born of the fact that many of the first settlers came as convicts who were overwhelmingly male: (A)s the Herald put it, if all the single adult men wanted to marry, only 4,000 out of 43,000 could do so. There were ten disappointed Adams to each Eve.2 By Federation in 1901, imbalance between the sexes was focused more obviously in the immigrant community – most particularly in groups whose presence in Australia was barely tolerated. In those early days, immigration law and policy was used to shape the Australian population in ways that were obviously both racist and sexist. Male migrants were preferred because of the contributions they made to the workforce, but only those with acceptable racial characteristics were permitted the privilege of sponsoring a foreign wife and family to join them. The result was gross imbalances in the sex ratios amongst persons of certain ethnic backgrounds in Australia as putative3 citizens. Hence, the 1901 Census recorded 29,513 males compared with 394 females amongst the “China born”. 4 The White Australia Policy prevented even the most
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established of coloured migrants from sponsoring from abroad family members of the same racial background.5 The overtly racist elements of Australia‟s migration laws and policies have now disappeared together with the gross disparencies in the sex ratios within Australia‟s migrant communities. Within a decade of the final abolition of the White Australia Policy in 1972, the statistical record began to show gender balance in the migrant populations reflective of the natural averages whereby women (because of their propensity to live longer) slightly outstrip men. Whether the laws and policies governing migration to this country have become truly gender neutral – and indeed whether they have ever been so - are other questions. Even if the overall intake programs suggest a gender balance in the formal sense, it is less certain that true equality has been either achieved or maintained at a substantive level. Substantive equality speaks to the feminist public policy theory that questions assumptions that policy in the public sphere affects all equally.6 The last broad scale “gender audit” of Australia‟s migration laws was undertaken by the Australian Law Reform Commission in 1994 in its study of women and equality before the Law.7 While many of the more egregious shortcomings in the law identified in that seminal report have been addressed, in this Chapter I will argue that there are areas where gains have been few and others where advances have even been reversed. As is so often the case for women all over the world, in at least some instances regressions and abuses have occurred and are occurring in ways that slip under the radar of public consciousness – precisely because of assumptions that use the male experience as the norm. In 1901 Australia‟s immigration laws were sited front and centre as blunt instruments of social engineering. In a new Century and a new Millenium, law and policy in this sensitive area has continued to be a vehicle for shaping the nature and character of Australian society but in ways that are no longer trumpeted in the public policy discourse. The shaping process has not been gender neutral – nor indeed have they necessarily been racially neutral. This Chapter begins with some brief comments about record keeping and the extent to which an awareness of gender issues has been fostered within different political administrations. The following sections attempt to give a balanced account of the impact of immigration law and policy on women in ways that are both obvious and more subtle. Part 3 outlines positive gains that have been made for women migrants in terms of access to residency; social entitlements and particular measures taken to protect vulnerable populations of women migrants. The issues identified for discussion are: serial immigration marriages; family violence; trafficking and women as refugees. The darker side of Australia‟s treatment of migrant women is explored in Part 4. Here I examine those aspects of law and policy that have had obviously negative impacts – most notably the regime for granting temporary protection only to certain asylum seekers and the laws and policies governing immigration detention and “offshore” refugee status determinations. Part 5 tackles the gender impacts of law and policy that are less obvious, using skilled migration as a case study. These laws are interrogated for their propensity to impact differentially on women in ways that entrench gender roles. The Chapter concludes with an evaluation of the current state of play. In spite of the improvements made over the years, it will be seen that Australia‟s score card still shows plenty of scope for improvement. 2
Women migrants and the statistical record
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As Anna Boucher notes, the dominance of the conservative coalition government in Australia between 1996 and 2007 saw a substantial diminution in “women‟s policy machinery” both in government generally and within the immigration bureaucracy specifically. 8 The “Women‟s Desk” established within the Department of Immigration and Ethnic Affairs in the 1980s disappeared, as did the gender audit statements that were regularly made available to academics and other interested parties.9 After 1996, data on immigration programs became gradually harder to procure as material published through the Department became both more sparse and/or more focused on issues relating to the skilled migration.10 There is little evidence of much attention being paid to issues of gender equity in the program. The election of the Labor government in 2007 ushered in a raft of changes in immigration policy, including a new commitment to openness. While this is reflected in the speed and nature of the response made to requests for statistics for this chapter,11 it is noteworthy that a special request still had to be made for data. The published statistical record still does not spell out such details as gender, age and ethnicity. Having said this, data has been collected over the years on gender and, more importantly, on who applies for visa as „primary‟ and as „secondary‟ applicants. This distinction operates as a shorthand way of identifying those whose attributes are scrutinized for the grant of a visa as opposed to those who are simply granted visas as dependants. While primary applicants represent single persons, the figures for secondary persons include spouse (partner), children and other dependants such as aged dependent relatives living within a family group.12 Boucher describes the division as being between migrants chosen for their „human capital‟ and those permitted to enter because of the „social capital‟ they represent in facilitating the successful settlement of the primary migrant.13 When disaggregated into primary and secondary applicants across the „family‟ and the „skilled migration‟ streams, the statistical data becomes a fertile ground for questioning assumptions that the program is gender balanced in either a formal or substantive sense. There was a marked growth in the gender imbalance across the spouse, fiancé and interdependent visa classes between 1996 and 2008, with females out numbering males 2:1 or more in the spouse and fiancé categories and males outnumbering females by similar ratios in the interdependent categories. TABLE 1: Family visa grants: Principal Applicant by gender Program Outcome Program Year Category
Gender
1996/97 1998/99 2000/01 2003/04 2005/06 2007/08
Fiancé
Female
1807
1880
Male
879
1004
1229
Female
123
94
158
Interdependent
2075
3059 1495 214
3742 1704 217
4051 1843 236
Male Spouse
274
196
350
407
342
405
Female
12046
12473
14050
14661
17076
19789
Male
7076
6708
8051
9039
9077
9236
4
2
1
1
Unknown
The statistics beg the questions whether anyone in government is noticing these trends and whether anyone is reflecting on why the imbalance might be occurring; what the consequences of the imbalance might mean for gender equity in Australia; and what roles law and policy might play in redressing the imbalance. It is beyond the scope of this chapter to do more than ask these questions. Nevertheless some general comments can be made on how migration laws and policies affect women. It is to this that we now turn.
3
Positive initiatives for women migrants Australia’s migration laws tend to be family- inclusive
Australia‟s use of immigration as a tool for social development is apparent in its long standing generosity in matters relating to family migration. Women and men alike have benefitted over many years from laws that permit citizens and permanent residents to sponsor spouses who are either legally married to or in de facto or “interdependent” relationships with the Australian party. Although laws permitting the sponsorship of close family are common across the world, not all countries permit the sponsorship of unmarried (de facto) partners. 14 Fewer again support family reunion for same-sex partners.15 Unlike many countries, Australia has generally permitted temporary migrants to bring their families with them for the duration of their stay, whether they have come as students or as temporary workers. These policies are reflected in the gender balance of the overall program for permanent migration noted earlier. As a general rule migrants eligible for permanent residence in Australia are able to bring in partners, dependent children and other dependent relatives. As the ALRC noted in 1994, there are some respects in which women have always been made vulnerable by the migration process and others in which changes to the law have rendered them more acutely at risk. Women who follow their men folk to a strange land, leaving family and friends have always exposed themselves to risk – most particularly where migration occurs as the result of an arranged marriage. What has set migrant women apart from other women at risk of domestic violence, however, is the way in which immigration laws have operated to trap women in abusive situations.16 The abolition of the White Australia Policy coincided with quite dramatic changes in thinking about immigration as a social tool, with increasing emphasis being placed on the skills of migrants and on their economic potential. As families came to be seen as the “chains that bind”,17 more and more attention was paid to perceived abuses of the partner migration laws.
Tenure requirements were introduced for relationships between parties being sponsored first within Australia and later from abroad. With exceptions made for marriages of long duration or where children are involved, most foreign partners are now required to wait out a period of two years‟ temporary residence before being granted permanent visas.18 Partners in de facto or interdependent relationships were required to prove first six and later 12 months cohabitation as a mandatory perquisite to a partner visa.19 It was acknowledged from the start that these laws had the potential to impact disproportionately on immigrant women who could find themselves trapped in an abusive relationship by a sponsoring partner using the threat of removal from Australia as a weapon to ensure silence. The task of minimising abuse of foreign spouses was addressed in several ways, two of which have particular relevance to women. First, the process of facilitating or engaging in a sham marriage for immigration purposes was criminalized.20 Second, limitations were placed on the ability of Australian parties to sponsor more than one foreign partner within a five year time frame. Finally, but most importantly, concessions were for migrants who suffer “family violence” at the hands of their Australian partners. Serial sponsorships are banned The imposition of restrictions on the ability of Australians to sponsor foreign spouses was controversial because of the strength of belief that the ability to marry and to found a family is a truly fundamental human right.21 Around the time of the ALRC‟s Equality Before the Law inquiry, however, research by Robyn Iredale and others22 highlighted the disturbing phenomenon of (almost invariably male) Australian sponsors nominating one partner after another. The women sponsored were typically discarded after their husband – if indeed the man deigned to complete a marriage contract – tired of them. In 1995, journalist interviewed one Australian man living in a remote mining town who claimed that sponsoring foreign brides was “cheaper than using a prostitute”.23 Since 1996, sponsors have been required to advise the immigration authorities of any prior sponsorships. The Minister must not approve the sponsorship of an applicant for a partner visa of any kind unless satisfied that only one person has been sponsored for a visa. A sponsor is only permitted to nominate one person within a five year period unless he or she can demonstrate “compelling circumstances”.24 In Babicci v MIMIA, the Full Federal Court interpreted the latter phrase according to dictionary definition of the word “compelling” as “to force or drive, especially to a course of action”. Babicci was seeking to sponsor a third wife and argued that his earlier marriages had failed because of psychological and emotional problems. The Court rejected arguments that these problems constituted “compelling circumstances” sufficient to warrant the fresh sponsorship. The family violence25 exceptions The changes to Australia‟s migration laws that have been most beneficial to migrant women who suffer domestic violence are those providing for the grant of residence to the victims of such violence notwithstanding failure to comply with various substantive requirements for permanent residence. It will be seen shortly that problems still inhere in the operation of the “family violence” exceptions as the relevant provisions are known. However, the overall trend has been
towards laws and policies that have become increasingly sensitive to the needs of persons who suffer abuse at the hands of their Australian partners. Early versions of the family violence provisions required the abused party to obtain an apprehended violence order from a court as a precondition to accessing the concessions. As many applicants were (and still are) from non-English speaking backgrounds living in communities that are quite cut off from mainstream Australian society and legal system, this requirement was seen to be unrealistic.26 Two major overhauls of the family violence exceptions have been made since their inception in 1989. The first, in 1995, relaxed the rules governing the evidence required to show that applicant or any family member had suffered violence at the hands of a sponsoring partner or of a third party where the violence was instigated by the partner. Evidence of violence now includes undertakings recognized by a Court where there has been an allegation of violence; a statutory declaration from the applicant, and from two “competent persons” stating that their opinion that the applicant has suffered from family violence. “Competent person” is defined in reg 1.21 to include doctors, psychologists, nurses, social workers, Family Court counsellors, and managers and coordinators of women‟s refuges, and domestic violence crisis and counselling services. A police record of an assault may be substituted for one statutory declaration from a “competent person.” The exceptions were extended also to cover most visa classes that involve the grant of residence on the basis of interpersonal relationship (heterosexual and same-sex), as well as to the main business and general skilled migration visas.27 Almost inevitably, the concessions made to support women victims of domestic violence came to be invoked by migrant men whose marriages to Australian women had failed. This lead in due course to debates over whether the domestic violence should be confined to physical violence or extended so as to include emotional violence.28 The Full Federal Court in Rith Sok v MIMIA1 ruled that violence can include psychological and emotional abuse and even economic deprivation.29 Marshall J noted that such an interpretation brings the reference to family violence in immigration into line with behaviour which can breach an injunction granted pursuant to the Family Law Act 1975.30 Concerns about abuses of the concessions by male applicants are apparent both in amendments to the Migration Regulations 1994 in July 2005. Decision makers and review authorities can now refer cases for assessment by “independent experts” where the evidence submitted is “nonjudicial” (Court orders are taken to be conclusive) and where reasonable doubts emerge about the claims being made. Experts gazetted for this purpose include officers within Centrelink.31 Opinions furnished by such experts (once sought) are also conclusive.32 The Procedures Advice Manual 3 (PAM) advise decision makers to send claims made by male applicants to an independent expert. In most cases such references are fatal to the claims made.
1
As is so common in immigration law, attempts to “clarify” the law (so as to prevent abuse) have produced unconscionable rigidities in the law – to the point where the family violence provisions have been described as a “triumph of form over substance”.33 In Du, Mathews J stressed the “specific and peremptory” terms of the Regulations: It is not sufficient compliance, in my view, for a competent person simply to note the consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence. The Regulations require that the competent person express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in reg 1.23 has been suffered by a person.
This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim.34 In other words, concessions for victims of family violence will not be made unless the applicant complies with the letter of the law both in terms of the qualifications of the experts attesting to the violence and the words used by the experts to describe what has occurred. For example, cases have been rejected on the basis that statutory declarations were sworn using State rather than Federal forms35; or before the wrong mix of “competent persons”.36 Too often it is the women who ultimately have been disadvantaged by this legislated pedantry. In Cao evidence was rejected (at first instance –not on appeal) from the coordinator of an organization that provided crisis accommodation because the statutory declaration did not specify that the woman was the coordinator of a woman‟s refuge.37
Perhaps the most disturbing development in the domestic violence cases, however, is a tendency in decision makers to circumvent the concessions altogether by ruling that domestic violence is evidence not of the breakdown in a relationship but rather of the fact that no relationship existed in the first place. In the matter of Ally, a Tanzanian woman was sponsored by an Australian citizen of Congolese ethnicity with whom it was accepted that she had a sexual relationship, although the Tribunal found that the couple had never cohabitated as husband and wife. The case turned on a domestic violence claim that was raised after the man had been found guilty of deliberately infecting two women with the AIDS virus and the woman sought to bring the relationship to an end. The tribunal found that the fact that the sponsor had not told his wife that he was HIV positive demonstrated that he was not committed to the marriage in the first place. This was the ruling notwithstanding the fact that the woman had been granted a temporary visa on the grounds that the couple had been assessed originally as being in a genuine relationship. According the woman‟s residence claim was rejected ex post facto on the basis that she had not met the ab initio requirements of a genuine relationship.38
Anti-Trafficking initiatives Another area in which real efforts have been made in respect of vulnerable women migrants is in the protection of persons identified as victims of human trafficking.39 Trafficking is defined under international law as: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs …40
Although it is difficult to gauge the extent of the problem in Australia, groups such as Project Respect in Melbourne and The Anti-Slavery Project in Sydney allege that there are probably as many as 1000 women who have been trafficked into Australia to work in the sex industry at any one time.41 Whether the product of real concern or a political gesture to counter balance contemporary criticisms of the government‟s treatment of irregular migrants, the Howard government announced a four year, $20million package of measures in October 2003 designed to combat human trafficking in Australia.42 The package included the creation (or variation) of four visa classes for victims of trafficking who “(make) a significant contribution to, and cooperate closely with, the prosecution” of an alleged trafficker.43 A temporary stay of between 30 days and two years can be converted to permanent residence in cases where it could be shown that the need for protection is on-going. The special visas were introduced as part of a package designed to bring Australian law into line with obligations assumed in signing and ratifying the UN Convention on Transnational Organised Crime and its two Protocols on People Smuggling and Human Trafficking. 44 As many have noted, however, the trafficking visas (as originally devised) fell well short of full compliance with these international instruments. This is because of the emphasis that was placed on a victim‟s cooperation with the investigation of a trafficking offence. The role that the trafficked women were expected to play in the criminal process is reflected in the fact that they were initially granted a criminal justice visa – a visa designed for witnesses in judicial proceedings. The Trafficking Protocol is quite specific in its exhortation that state parties should focus first on the welfare of the trafficking victim, rather than on the prosecution of alleged traffickers.45 As Dorevitch and Foster note, the model adopted had resulted in few applicants for the new visas within the first 5 years of the regime‟s operation.46 This is not surprising as the prosecutionprotection link can deter victims from cooperating with Australian police and immigration officials because of fears for the victim‟s own safety or that of their family. Dorevitch and Foster argue that the original scheme was “fraught with insecurity for trafficking victims”.47 In July 2009, substantial changes were made to both the People Trafficking Visa Framework and to the support systems for trafficked women. Perhaps the most significant of these is the deemphasis of the nexis between the protection of women victims of trafficking and the prosecution of traffickers. At least some of the suggestions made by persons in a parliamentary review of the 2003 measures48 appear to have been adopted. These include the grant to the immediate family members of a trafficking victim of a Witness Protection (Trafficking) (Permanent) visa – even if they are situated overseas!49 However modest, there is some evidence of success in the anti-trafficking initiatives taken by the Federal government since 2003. These include the successful prosecution on slavery charges of a Melbourne brothel madam. Wei Tang was convicted and initially sentenced to ten years in prison of possessing and subjecting to “slavery” 5 Thai women. The women were “purchased”
under contract for between $40 – 45,000 and were forced to live in what were described as “debt-bondage” conditions. One Donoporm Srimonthon, an employee of Wei Tang who had herself been trafficked into Australia by Ms Tang, pleaded guilty to two counts of slave trading and three counts of possessing a slave contrary to s 270.3(1)(a) of the Criminal Code (Cth).50 The High Court upheld an appeal against the conviction, providing the first authoritative Australian jurisprudence on the definition of slavery.51 The definition of „slave‟ in s 270.3 draws upon the definition of slavery in s 270.1 as: the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person. The central issue in the case was the extent to which the prosecution needed to prove intention on the part of Ms Tang to possess and use a person as a slave. With Kirby J an interesting dissentient, the majority favoured the view that as long as a person intended to exercise any of the powers attaching to ownership of a person, the slavery offences could be made out, following the „common exercise of relating the fault element to the physical elements of the offence‟.52 Insert ref to change of law
Women refugees It is beyond the scope of this survey chapter to engage in any depth with the issues facing women as refugee claimants. Suffice to say that there have been both very positive developments in Australia‟s approach to women in need of refugee protection in recent years and some egregious examples of shortcomings in our jurisprudence and attitudes. This is one area where the academy has enjoyed considerable successes in broadening the knowledge base of decision makers at all levels – and in changing the way people think about women and refugee protection. As many have attested, the central problem is that the principal international Convention – the Convention relating to the Status of Refugees and its attendant Protocol – was written by drafters who saw the male refugee as the norm. In 1994, the ALRC devoted a chapter in its final report to this issue, examining both the selection of women refugees from overseas as part of Australia‟s Humanitarian migration program and the challenges facing women who seek asylum in Australia. One can expect a gender imbalance in the population of asylum seekers – refugees who leave their countries to seek protection as asylum seekers are typically male. One (partial) explanation that might be advanced for the preponderance of women sponsored in the spouse and fiancé categories (see above Table 1) may lie in the dominance of males in visas granted on grounds of refugee or humanitarian status over the years. In contrast, the offshore refugee and humanitarian intake is subject to choices made by immigration officials. It was a matter of some concern in 1994 that the imbalance was as great as 3:1 against women.53 Even where a sub-program was introduced to facilitate the admission on humanitarian visas of women deemed to be “at risk”, for some years the quotas assigned to this visa category were not filled.54 In this context, acknowledgement should be made of the work over many years of Eileen Pittaway and others from the Centre for Refugee Research at the University of NSW. Problems with this scheme have been addressed in intervening years. Insert references
For women seeking asylum in Australia, problems have arisen both in the processes followed in the processing of claims and in the application of the relevant principles of domestic and international law. One of the most pleasing developments in the first of these matters was the decision by government to publish “gender” guidelines in 1996 for the processing of refugee claims made by women.55 The guidelines used by both departmental officials and by the review authorities have been revised and improved over the years.56 Sadly, it is not clear that the practice on the ground has necessarily reflected the sophistication of the paper policies – most particularly in instances where decision makers have been operating in remote locations and under considerable „operational‟ pressures (see further part 4 below). In the interpretation of the definition of refugee,57 women have been both winners and losers over the years.58 In many respects, advances made in the international legal discourse have been reflected in the Australian jurisprudence. On the positive side, there seems to be a much broader acceptance now that in defining what should constitute “persecution” for the purposes of Art 1(2) of the Refugee Convention, distinctions should not be drawn between „public‟ and „private‟ types of harm suffered by women. Hence, it is now accepted that rape can and is frequently used as a weapon of persecution against women rather than as a „natural‟ by-product of war and female vulnerability.59 The Australian High Court‟s ruling in Khawar v MIMA set something of an international benchmark for its recognition that women victims of domestic violence can meet the definition of refugee notwithstanding the fact that their mistreatment typically occurs in a „private‟ domain.60 Less helpful to women was the finding by the High Court in 1997 that women who had given birth in contravention of strict family planning laws – specifically the “One Child Policy” of the Peoples‟ Republic of China – could not be refugees.61 The Court accepted that forced abortion and sterilization could amount to persecution for the purposes of the Convention definition of refugee. However, the majority ruled that women facing persecution of this nature could not demonstrate a nexis with one of the Convention‟s five grounds. The majority reasoned that opponents to the One Child Policy could not use their shared experience of persecution as evidence that they were members of a “particular social group”.62
4
Immigration laws and policies that are or have been obviously detrimental to women
Australia‟s migration law have operated most obviously to the detriment of women in areas that are not (or were not) particularly „gendered‟ on their face: the temporary protection scheme for certain onshore refugees; mandatory detention; and „offshore‟ refugee processing. The temporary protection regime introduced by the Coalition government in 1999 removed overnight the ability of asylum seekers recognized as refugees in Australia from sponsoring their families for admission through regular migration channels.63 Women were inevitably (and deliberately) disadvantaged by the new laws. Wives and children were either left languishing in
the dangerous conditions from which their husbands and fathers had fled in search of safety or they were forced to submit to the perils of people smuggling in order to reunite their families. The gender and age statistics of illegal boat arrivals after the changes to the law in October 1999 show the immediacy and extent of the impact on women and children.64 Amongst the 353 asylum seekers who drowned at sea with the sinking of the unknown “Suspected Illegal Entry Vessel” (SIEV) dubbed SIEV X, 142 were women and 146 children. Most were attempting to enter Australia so as to be reunited with husbands and fathers already in the country.65 Mandatory immigration detention is achieved in the migration legislation through the stipulation that all non-citizens in Australia without a visa must be detained until such time as they are either granted a visa or removed from Australia.66 The central question is who is entitled to the magic visa that operates as a passport to freedom. It was a hallmark of the years of conservative governance in Australia between 1996 and 2005 (when backbencher revolts began to see some policy change) that no real distinction was drawn between men, women and children present in Australia without authorization. The brutality of the regime that saw the creation of detention centres in some of the most remote and inhospitable parts of Australia is well documented.67 The harshness of the conditions in the centres – wracked as they were with both psychological and physical violence – were particularly detrimental to the interests of women and children.68 The jurisprudence from this period confirmed the constitutionality of the repressive measures even as the judiciary acknowledged the barbarity of the treatment being afforded to these women and children.69 As the excesses of these years recede into the past, there are some aspects of the surviving laws and practices that are worthy of mention for their impact on women (and children). The first point to make is that the placement and configuration of the immigration detention facilities in Australia has for many years created inherent inefficiencies for the administration which impact adversely on women. Until very recently, many were sited in remote parts of Australia in what began under Labor in the 1990s as a quite deliberate attempt to place distance between detainees and their lawyers and supporters. The use of Christmas Island as a holding centre for asylum seekers interdicted en route to Australia is the most extreme current example of this practice. This is the regime that is referred to as „off-shore processing‟.70 Whether asylum seekers are housed within or outside the detention facilities in that place, the results are the same: physical and emotional separation of the migrant from her or his legal and social support systems. Lack of ready access to the migrant creates administrative stresses for both advisers and immigration officials, both of whom are forced to gather and assess information about their clients within tight time frames and often in challenging physical circumstances. In the result, where women and children present as part of a family group, the story of the adult male typically is given priority. The women and children are rarely interviewed separately and in many cases no attempt is made to examine whether they may have separate claims. As noted in the 2006 Seeking Asylum Alone report into the treatment of separated and unaccompanied children, the pressures of „task force‟ processing of refugee claimants is particularly problematic for women and children. While the forms provided for the gathering of data permit the collection of material in respect of individual members within a family group, there is no legal requirement that decision makers consider each person individually. Australian law in this regard stands in contrast to that of comparator countries like New Zealand where administrators are required by
law to consider separately the asylum claims of each asylum seeker, regardless of age or membership of a family group.71 The second (obvious) problem is that detention of any kind is harmful to both the detainee and to those charged with their detention. The „out-sourcing‟ of services for the management of both detention centres and community detention services has created problems that have particularly negative impacts on women and children. The privatization of the centres in the 1990s certainly coincided with a dramatic decline in the treatment of detainees. This may have been because staff employed in the centres were sourced from within the criminal justice system (bringing with them behaviours and expectations born of the harshness of prison environments). Whatever the reasons, the available evidence is that the detention experience de-humanised the guards to the point that many became insensitive to the suffering of the people in their care. The stories of three women are illustrative of both this phenomenon and the extent of the detriment suffered by women in a legal regime that provides for the mandatory detention and removal of „unlawful non-citizens‟. The first came to be known only as “the Chinese Woman”. She was an asylum seeker who travelled to Australia by boat who was returned to the Peoples‟ Republic of China (PRC) after years in immigration detention - during which time she gave birth to one child and fell pregnant with another. Because of the High Court‟s ruling in Applicant A v MIEA,72 her claim for protection as a refugee was rejected. In the face of pleadings that she should be allowed to remain in Australia until after the birth of her second child, the woman was returned to the PRC at 8.5 months pregnant. Upon arrival she was denounced by the mother of the man who had fathered her children and forced to undergo an abortion of her full-term baby. Although these events triggered a major Senate inquiry, all attempts to persuade the government to allow for the woman‟s return to Australia with her young daughter were rejected.73 The treatment of the second woman, Cornelia Rau – a permanent resident with acute psychiatric problems who was mistakenly kept in immigration detention for over 18 months - is illustrative of the impact the detention laws on the guards charged with caring for the detainees.74 Even after the guards at the Woomera Detention Centre knew that Ms Rau was a lawful permanent resident who should not have been in custody, they showed distain for her human rights and dignity. Footage secured by ABC 4Corners journalists of internal security camera recordings show Rau being removed from the centre to be taken to a psychiatric facility. She is dragged from her bathroom where she had been taking a shower – stark naked and soaking wet. The woman asks repeatedly what she has done wrong as she is strapped to a gurney and taken away. The last sound is of her pleading for her teddy bear.75 The third woman whose experience is often cited as illustrative of the dehumanizing effects of Australia‟s immigration compliance laws as they were enforced under the Howard government is Vivian Solon-Alvarez. An Australian citizen and mother of two Australian born children, Ms Solon-Alvarez shared with Rau an element of vulnerability born of mental illness that was greatly exacerbated by physical trauma that effectively rendered her paraplegic. While Rau merely suffered the indignities of detention, Solon-Alvarez was removed from Australia and dumped unceremoniously at a foreign airport where no arrangements had been made for her reception and care.76
5
The Hidden Gender of Skilled Migration Laws
Although not a matter that can be pursued at length here, some mention should be made of other aspects of Australian migration laws and policies that can be markedly „gendered‟ in their effect. These are the sub-marine facets of our editors‟ iceberg that have tended to pass beneath the radar of the feminist discourse – although not entirely. Two academics – Catheryn Dauvergne and Anna Boucher - have drawn attention in recent years to the potential for gendered social engineering in the selection of skilled and business migrants in Australia.77 Both emphasize the significance of permanent skilled migration as the reflection of a nation‟s “vision of its future citizenry and what the rights and responsibilities of those citizens should be”. Through an analysis of the criteria used for the selection of skilled migrants, Dauvergne and Boucher demonstrate that the laws favour the selection of male skilled migrants.78 Boucher has undertaken a detailed analysis of the operation of the points tests which are used to select a migrants admitted on the basis of their skills rather than at the behest of an employer. In brief, points tests operate to allocate scores to applicants against criteria that range from age, qualifications and/or occupational skills, work experience, language proficiency and relationship with an Australian party. First devised in Canada, multi factor assessment tests have been used in Australia since 1979, changing significantly in character over the years. Tests used since insert year and ref have been characterized by their rigidity in allocating points against particular (gazetted) occupations for which applicants must be able to show that they are „job ready‟ in the sense of having met any requirements for practice in Australia. Boucher argues that the points tests disadvantage women in a variety of ways. First, the system for gazetting particular types of jobs in what is known as the Skilled Occupations List (SOL) may help to meet particular needs in Australia‟s workforce. However, it presupposes very specific occupational skills and the ability to meet the professional requirements for entry into particular industries or professions. Boucher demonstrates that the narrower the range of skills required, the more likely it will be that men rather than women will be able to meet the criteria. Boucher argues that the points tests in Australia are also gendered in what they characterize as human as opposed to social capital. The SOL leaves largely unrecognized as human capital either unpaid or paid care work outside of the health care sector; and it places no value on part time work. The requirement that applicants have worked in a SOL occupation on a full time basis and for at least three years disadvantages women whose careers are typically interrupted by family responsibilities. The allocation of maximum points for age to those under 30 will also work against women in this regard. Finally, Boucher argues that the emphasis on English language skills tested through a standard examination process creates both gender and ethnic biases in the system that are particularly detrimental to women from non-English speaking backgrounds.79 Although silent on ethnicity, the raw statistical data on the skilled migration program supplied by the Department bear out Boucher‟s analysis. The following table records the visas granted to principal applicants only (omitting secondary visa grants) between 1996 and 2008. Although
there have been slight improvements in more recent years, the ratio of visa grants has favoured males at a rate of 2:1 or greater for the best part of a decade. Table 2: Principal Applicants for Skilled Visas by Gender 1996 – 2008.80 Year
1996/7
1997/8
1998/9
1999/20
2000/1
2001/2
2002/3
2003/4
2004/5
2005/6
2006/7
2007/8
Female
4054 10460 14514
4143 9498 13641
4308 9354 13662
4190 9588 13778
5915 12982 18897
8130 17004 25134
10802 17527 28329
12682 20019 32701
14781 24642 39423
17503 29551 47054
17631 31366 48997
17354 35063 52417
Male Total
6
The Score Card
The change of government in 2007 represented a watershed in some of the areas discussed in this chapter. The abolition of the temporary protection visa scheme, for example, brought immediate relief for many refugee families. These and other policy changes made by Minister Evans have gone a long way towards changing the culture within the immigration detention centres that was criticized with such astringency by Messrs Palmer and Comrie after the Cornelia Rau and Vivienne Solon-Alvarez scandals.81 Attempts are being made also to improve the research capacity of the Department, both through the improvement of computing systems and „reporting lines‟ and through the fostering of direct research. However welcome policy developments and „cultural‟ change might be, the need for wholesale reform of Australia‟s migration laws is patent. As long as the central laws on immigration detention and offshore processing remain unchanged, the potential for negative impact on women migrants remains profound. The brief analysis of the family and skilled migration statistics suggest that the gender equity of the migration program as a whole remains quite compromised. As Anna Boucher suggests, if the government is committed to the idea of achieving real gender equality and equity it would be advised to follow Canada‟s lead in conducting regular gender audits of its migration laws, policies and statistical data.82 In this the country has nothing to lose and everything to gain.
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Mary Hoban Fifty-one Pieces of Wedding Cake: A Biography of Caroline Chisholm (Kilmore: Lowden Printing, 1773, 47. The unreferenced quotation is from a poem by Henry Lawson. The author would like to thank Susan Harris-Rimmer, Laurie Berg and Ron McCallum for their useful comments and suggestions made on drafts of this chapter. Any errors made and opinions expressed are my own. Ibid. It should be noted that while migrants to Australia could be “naturalised” – the first colonial legislation recognising membership in this sense was passed in 1828 - formal citizenship in Australia did not develop as a legal concept until 1948 with the passage of the Australian Citizenship Act 1948 (Cth). See Kim Rubenstein Australian Citizenship Law in Context (Melbourne: LBC, 2002) at 50-51. See Statistics Section, DIMA Immigration: Federation to Century’s End, DIMA 2001, at p 28.
5 6
7
8 9
10
11
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16 17
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See, for example, Donohue v Wong Sau (1925) 36 CLR 404. See Carol Pateman, The Disorder of Women: Democracy, Feminism and Political Theory (Cambridge: Polity Press, 1989); and Anna Boucher, “Skill, Migration and Gender in Australia and Canada: The Case of Gender-based Analysis” (2007) 42 Australian Journal of Political Science 383 at 387ff. See Australian Law reform Commission Report No 69, Equality Before the Law: Part 1 Justice for Women; and Part II – Women’s Equality (Canberra, ALRC, 1994). (ALRC) See Boucher, above n 6 at pp 395-6. Id., citing Anne Summers, “Mandarins or Missionaries: Women in the Federal Bureaucracy” in N Grieve and A Burns (eds) Australian Women: New Feminist Perspectives (New York: Oxford University Press, 1986), 59. See the Department‟s Annual Reports and the various statistical publications available at www.immi.gov.au.Users-pay schemes were introduced in 2001 but these were not the only impediments placed in the way of researchers. In 2004 -5 the present author found that it was easier to ask for statistical information through friends in Parliament (using the Senate Estimates inquiries) than to obtain data from within the Department. See Mary Crock Seeking Asylum Alone: A Study of Australian Law, Policy and Practice Regarding Unaccompanied and Separated Children (Sydney: Themis Press, 2006), 37 – 44. Special thanks are due to Usha Arif and staff in the Department‟s Strategic and Global Migration Framework branch of the Department of Immigration and Citizenship for compiling the statistics analysed in this Chapter. Note that secondary persons in the spouse and interdependent visa classes include children and non-partner dependents only, which means in practice that the statistics (in the main) are revealing the gender of the children of relationships. See Anna Boucher, “Picking the Best and Brightest: Gendering Skilled Immigration Policy in Australia and Canada”. Paper presented for the European Consortium of Political Research First European Conference on Politics and Gender, Queen‟s University, Belfast, 21-23 January 2009, available online at https://www.sx.ac.uk/ecpr/standinggroups/documents/Boucher.pdf. France is an example in point. See Hiroshi Motomura, “The Family and Immigration: A Roadmap for the Ruritanian Lawmaker” (1995) 43 AmJ Comp L 511. The United States does not, for example. See generally Lena Ayoub and Shin-Ming Wong, “Separated and Unequal” (2006) 32 William Mitchell Law Review 559. US immigration law does not include a gay or lesbian partner within its statutory definition of "spouse," so binational same-sex couples may not legally remain in the country together, even if they have been married under domestic or foreign law. The Ninth Circuit in Adams v Howerton 673 F2d 1036 (9th Cir 1982) ruled that while the Immigration and Nationality Act (US) did not define the term "spouse," the decision to limit its reach to heterosexual relationships was constitutional. American consulates abroad seem to permit non-marital partners (gay or straight) the ability to visit the US as tourists when their partners apply for temporary work visas: see Michael Scaperlanda, “Kulturkampf in the Backwaters: Homosexuality and Immigration Law” 11 (2002) Widener Journal of Public Law 475 at 493. This does not, however, entitle a gay couple to permanently reside in the US. For a review of gay and lesbian refugee claimants in Australia see Laurie Berg and Jenni Millbank, “Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants” (2009) 22 Journal of Refugee Studies 195. See “Violence against women and immigration law” in ALRC Part I, above n 7, chapter 10, p 213. Bob Birrell, “The Chains that Bind: The Australian Experience of Chain Migration” (Canberra, DIEA, 1989) See Migration Regulations 1994, subcll 100, 300, 309; 826 and 801. For an account of these changes, see Mary Crock and Laurie Berg Immigration and Refugee Law in Australia (2nd Edition, Sydney: The Federation Press, 2009 forthcoming) at Ch 7. See Migration Regulations 1994, subcll 110; 310, 826. For persons arranging sham immigration marriages ss 240-242 of the Migration Act 1958 create offences attracting a $100,000 fine, 10 years in prison or both. Those involved as parties to such a union can receive a prison sentence of 2 years: see Migration Act 1958 (Cth), ss 243 and 244. See UN Covenant on Civil and Political Rights, Art 26. See Sarah Joseph, Jenny Schultz and Melissa Castan The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Melbourne, OUP, 2nd edition, ) at Ch 20.21.
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24 25
26 27
28
29 30 31 32 33
34 35 36
37 38 39
40
41
42
43 44 45 46 47 48
See Robyn Iredale, J Innes, and Steven Castles, Serial Sponsorship: Immigration Sponsorship and Human Rights Centre for Multicultural Studies, University of Wollongong, 1992; and ALRC (1994) at Part I, Ch 10.26ff. See Nikki Barrowclough, “Disposable Wives: The Scandalous Story of Australia‟s Serial Sponsors” Good Weekend: The Sydney Morning Herald Magazine, 6 May 1995 at 48. See Migration Regulations 1994 (Cth), Div 1.4B, inserted by SR 211 of 1996, in particular, reg 120J. The term “family violence” was introduced to replace former references to “domestic violence” in October 2007. These changes aligned the migration legislation with relevant provisions of the Family Law Act 1975 (Cth). See Migration Regulations, reg 1.23(2)(b) definition of “family violence”, made consistent also with the evidence requirements in regs 1.24 – 1.26. See also the replacement of the phrase “court counselor” with “family consultant” in reg 1.21(1)(a)(v) in the definition of “competent person”. See for example the submissions made on behalf of the applicant in Re Thomson (IRT 5348, 31 May 1995). The exceptions apply to visas of the following general types: spouse; interdependency; dependent child; established business in Australia (both independent and State/Territory sponsored); Labour Agreement; Employer Nomination Scheme; Distinguished talent; and Resolution of Status (Migration Regulations subcl 851 but not subcl 850). See Migration Regulations, reg 1.23(2)(b) definition of “family violence”. Compare Malik v MIMA [2000] FCA 562 with Doan v MIMA [2000] FCA 909 and Cakmak v MIMIA (2003) 135 FCR 183. [2005] FCAFC 56. See s 114(1)(a), (b) and (c) of the Family Law Act 1975. See Migration Regulations, reg 1.21 (1). See Migration Regulations, reg 1.23 (1C). See Ibrahim v MIMIA [2002] FCA 1279; Cakmak v MIMIA (2003) 135 FCR 183, [14]-[15]; and Isse v MIAC [2006] FMCA 253. [2000] FCA 1115 at [18]-[19]. See Mohamed v MIAC [2007] FCA 1004; and Morgan v MIMA [1999] FCA 1059. The use of two medical practitioners instead of substituting one for another type of expert lead to the rejection of the application in Mardini v MIMIA [2005] FMCA 1409 . On appeal see [2006] FCA 488, at [41]. See Cao v MIAC [2007] FMCA 1239. See Ally v MIAC [2007] FMCA 430; and Ally v MIAC [2008] FCAFC 49. For two excellent accounts of developments in this area, see Jennifer Burn, Sam Blay and Frances Simmons, „Combating Human Trafficking: Australia‟s Responses to Modern Day Slavery‟ (2005) 79 Australian Law Journal 543; and Anna Dorevitch and Michelle Foster, “Obstacles on the Road to Protection: Assessing the Treatment of Sex-Trafficking Victims under Australia‟s Migration and Refugee Law” (2008) Melbourne Journal of International Law 1. See United Nations Convention against Transnational Organized Crime, GA Res 55/25, UN GAOR, 55th sess, 62nd plen mtg, Annex II (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children), Agenda Item 105, preamble, UN Doc A/RES/55/25 (8 January 2001) („Trafficking Protocol‟), art 3(a). See Project Respect, About Trafficking http://www.projectrespect.org.au. The conflicting statistics are discussed by Dorevitch and Foster, above n 39 at note 6. For a discussion of the measures, see Burn, Blay and Simmons, above n 39 at 545. See also Dorevitch and Foster, above n 39 at note 53. See Migration Regulations, reg 2.07AJ(3)(c), (f). See above n 40. See trafficking Protocol, above n 40, Art 6. The authors cite a figure of 15 women only as being issued with trafficking visas. See above n 39 at n77. See above n 39, n 80. See Parliamentary Joint Committee on the Australian Crime Commission, Parliament of Australia, Inquiry into the Trafficking of Women for Sexual Servitude (2004) at: http://www.aph.gov.au/Senate/committee/acc_ctte/completed_inquiries/200204/sexual_servitude/index.htm (Accessed 21 July 2009)
49
50 51
52 53 54 55
56
57 58
59
60
61 62
63
64
65 66 67 68
69
70 71 72 73 74
See Australian Government Anti-People Trafficking Strategy” at http://www.fahcsia.gov.au/sa/women/progserv/violence/Pages/AntiPeopleTraffickingStrategy.aspx (accessed 21 July 2009) See R v DS [2005] VSCA 99. See The Queen v Tang [2008] HCA 39. For a collection of media articles on the case, see http://www.justsalvos.com/userfiles/file/links_trafficking.pdf; and http://projectrespect.org.au/sites/projectrespect.org.au/files/wei-tang-info-kit.pdf See He Kaw The v R (1985) 157 CLR 523 at 568. ALRC Report, above n 7 at 236). ALRC Report, above n 7 at para 11.58ff. DIMA Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers, July 1996 (the Gender Guidelines). See also DIMIA, “Gender-Related Persecution (Art 1A(2)): An Australian Perspective, available at: http://www.immi.gov.au/media/publications/refugee/convention2002/08_gender.pdf For the current version of these guidelines, see Procedures Advice Manual 3, Gender Guidelines, available through LEGENDcom (Current as at 9 August 2008). See also the guidelines that have been prepared for the tribunals. See The Convention relating to the Status of Refugees, Art 1A(2). There is now a wealth of literature on women and refugee law and no attempt will be made to canvass it here. See generally, Heaven Crawley Refugees and Gender: Law and Process (Bristol: Jordan Publishing, 2001); and ; Thomas Spijkerboer Gender and refugee Status (Aldershot, Burlington: Ashgate, 2000). See Gender Guidelines at para 4.6; S Razack, “Domestic Violence as Gender Persecution: Policing the Borders of Nation, Race and Gender” (1995)8 Canadian Journal of Women and the Law 45; and UNHCR Handbook on Procedures and Criteria for the Determination of Refugee Status (Geneva, 1979) at 84-91. See Khawar v MIMA [2002] HCA 14. See Rachel Bacon and Kate Booth, “Persecution by omission : violence by non-state actors and the role of the state under the Refugee Convention in Minister for Immigration and Multicultural Affairs v Khawar.” (2002) 24 Sydney Law Review 584-602. See Applicant A v Minister for Immigration and Ethnic Affairs (MIEA) (1997) 185 CLR 259. For a discussion of the issues raised by this case, see Mary Crock “Apart from Us or a Part of Us: Immigrants” Rights, Public Opinion and the Rule of Law” (1998) 10 IJRL 49-76; and Penelope Mathew, “Applicant A v. Minister for Immigration and Ethnic Affairs - The High Court and Particular Social Groups: Lessons for the Future” (1997)21(1) MULR 277; and Guy Goodwin-Gill and Jane McAdam The Refugee in International Law (3rd ed: London: Oxford University Press, 2007) at 77-8, 103. See Mary Crock, Ben Saul and Azadeh Dastyari, Future Seekers: Refugees and Irregular Migration in Australia (Sydney: Federation Press, 2006) at Ch 8. See the Database of Asylum Seeker Boats between 1989 and 2003 at http://www.sievx.com/dbs/boats/form.php?&table_name=Boats&function=search&sql=&name_mailing=& page=0&order=. For the best collection of material on this tragedy See http://www.sievx.com/. See Migration Act 1958 (Cth), ss 198, 198 and Crock, Saul and Dastyari, above n 62 at chs 9 and 10. See Crock, Saul and Dastyari, above n 62 at ch 11. See the various reports prepared by the Human Rights and Equal Opportunity Commission (as it was then called) available at: HREOC reports published over the years, available at: http://www.humanrights.gov.au. The most damning of these is A Last Resort? The National Inquiry into Children in Immigration Detention, available at: http://www.humanrights.gov.au/human_rights/children_detention_report/index.html See Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369 („Re Woolley‟); and Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 271. See Crock, Saul and Dastyari, above n 62 at Ch 7; and Savitri Taylor See Crock, Seeking Asylum Alone. Above n 10 at Ch 8. Applicant A v MIEA (1997) 185 CLR 259. See Senate Legal and Constitutional References Committee, A Sanctuary Under Review See the Report by former Police Commissioner, Mick Palmer Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau, available at: http://www.immi.gov.au/media/publications/pdf/palmer-report.pdf. See also David Marr, “Once over
75
76
77
78
79
80 81
82
lightly: the Palmer inquiry into Cornelia Rau's detention” Sydney Morning Herald, 23 June 2005, available at: http://www.smh.com.au/news/national/once-over-lightly-the-palmer-inquiry-into-cornelia-rausdetention/2005/06/22/1119321795466.html. See The Guards' Story" – reported by Quentin McDermott on Four Corners, ABC1 at 8.30 pm Monday 15 September. See http://www.abc.net.au/4corners/content/2008/s2362098.htm. Rau‟s personal oddessy is documented in Debbie Whitmont (Producer), Anna’s Story ABC 4 Corners, 4 April 2005. See http://www.abc.net.au/4corners/content/2005/s1335386.htm. Neil Comrie, Inquiry into the Circumstances of the Vivian Alvarez Matter, available at: http://www.ombudsman.gov.au/publications_information/Special_Reports/2005/alvarez_report03.pdf See Boucher, above n 6 and n 13; and Catheryn Dauvergne Dauvergne, “Gendering Permanent Residency Statistics.” (2000) 24 Melbourne University Law Review 280–309. See also Dauvergne‟s more recent work on the same subject: Catheryn Dauvergne, “Globalizing Fragmentation – New Pressures on the Women Caught in the Migration Law–Citizenship Law Dichotomy.” in S. Benhabib and J. Resnick (eds) Citizenship, Borders, Gender (Princeton: Princeton University Press, 2008). See above n 13. Source: Unpublished statistics supplied by DIAC 30 July 2009. See above n 11. See Elizabeth Proust, Evaluation of the Palmer and Comrie Reform Agenda – including Related Ombudsman Reports available at http://www.immi.gov.au/about/department/perf-progress/evaluationreport/proust-report.pdf. See above n 6 at 397-8.
