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Blog: How do we translate the Human Rights Act into real outcomes for women?

Nadia Bromley – CEO Women’s Legal Service Queensland

Let’s delve into how well we empower women to use their legal rights and protections and examine how cultural norms might undermine the real-world application of human rights laws, particularly in translating them to practical protections for women facing domestic and family violence (DFV). 

This article reflects on the legislative landscape and the complexities of translating human rights into tangible protections that not only provide rights-oriented – but also practice-oriented capacity to protect women who are experiencing DFV.  

Ensuring Human Rights Are More Than Words on Paper: A Closer Look at Domestic and Family Violence 

Human rights are the foundation of a fair and just society, yet implementation proves challenging in the context of domestic and family violence (DFV) experienced by women in Queensland. Despite robust legislative frameworks that encompass rights such as life, freedom from torture, and access to health services, the gap between legal protections and their practical application remains profound. The real challenge lies in adapting law and practice to ensure women who are experiencing DFV have the capacity to exercise their rights.  

Filling the Void Between Rights and Reality 

While the law provides a framework for protection, it often falls short in practice if a person doesn’t have the ability to exercise their rights. For instance, a woman’s right to be protected from torture is clear, yet if she experiences such abuse at home, what can she do about this? She may approach the police, which may or may not lead to a prosecution.  

In the criminal context, the decision to defend her right not to be tortured belongs to the King, and it is prosecuted in his name. The victim is not a party to the proceedings, rendering her voice largely unheard. So, there is a way to try to enforce that right – but it is not an empowering right, and certainly not one that provides the agency or dignity usually associated with the possession of a legal right.   

Empowering Women through Legislative Reform 

The Domestic and Family Violence Protection Act 2012 offers some protections, but these too have their limitations, especially when it comes to safeguarding the most disadvantaged women in our community.  

Common law actions present another avenue, but they are fraught with challenges including barriers to access and significant limitations in relation to remedies. 

The existence of rights is one thing; having the ability to meaningfully exercise those rights is another.  

Between January and August 2024, several bills were passed in the State Parliament with the potential to significantly impact the rights and lives of women. These include the Criminal Code (Decriminalising Sex Work) and Other Legislation Amendment Act 2024 and the Queensland Community Safety Act 2024.  

But the question is, to what extent was the drafting of these laws focussed on the ability for women to obtain the legally available rights and protections introduced through these laws?  

The drafting of laws must focus not only on creating rights but also on enabling them to be exercised, so that individuals can be empowered to take action.  

To actually achieve their stated purpose, laws need to be not only rights-oriented but also practice-oriented, taking into account the cultural context and the ability of women to exercise rights. 

The Role of Cultural Norms 

Cultural norms significantly influence the implementation of legal protections. Despite a system framework to identify and address DFV, significant disparities persist between legal mandates and the realities faced by women. Reports from numerous commissions and inquiries reveal a stark difference between the law and its implementation.  

One of the most eloquent articulations of this issue is found in the Honourable Margaret McMurdo AC’s Foreword to Report One of the Women’s Safety and Justice Taskforce: 

“I expected to hear from women about their mistreatment at the hands of perpetrators. I did not expect to hear that women perceived their perpetrators are emboldened by police, legal practitioners and judicial officers. Many feel the justice system is failing them.” 

The law alone is insufficient. Bridging this gap requires not only legislative clarity but also cultural norms and practices that align societal attitudes with legal imperatives. Only then can we say that human rights have been successfully translated into outcomes for women. 

Recognising Violence Against Women as a Human Rights Violation 

The absence of an international treaty recognising violence against women as a human rights violation highlights a significant gap in the global human rights context.  

While the Convention on the Elimination of Discrimination against Women (CEDAW) is designed to promote equality, it does not refer to domestic violence or violence against women generally.  The United Nations Declaration on the Elimination of Violence against Women 1993 is not a treaty but does recognise violence against women as a human rights issue.  

As much as international instruments are limited in their practical utility, given they are not directly enforceable, they do create other significant opportunities, in the development of the common law, interpretation of domestic laws, and, importantly, they provide a strong cultural statement. The lack of a specific focus on gender-based violence remains a critical gap in international human rights treaties. 

Towards a Practical Realisation of Human Rights 

The goal is to create the capacity for women to exercise their human rights freely. Moving forward, efforts must prioritise the translation of legal rights into tangible protections that resonate with the lived experiences of women. This requires not only well-crafted legislation but also community engagement and educational initiatives to challenge cultural biases that limit these rights. 

The Queensland Human Rights Act is a positive step forward, it is a lever to influence government, to advocate about laws are structured. Fundamentally, there is an obligation on all of us to conceptualise different ways we could draft laws with a view to how they are used in practice, rather than the technical rights that they create. We need to consider the risk that the more laws we create in abstraction, the less likely we are to deal with the actual violations of human rights that we see every day.  

Other opportunities  

There is considerable discussion and debate about other avenues for articulating and protecting the rights of women affected by DFV. This includes the potential to establish a domestic violence tort or specific international treaty on violence against women. Regardless of the intellectual merit of any of these options, the value of any tool is limited by the ability of people to use it. The insights of those affected are crucial for crafting legal frameworks and systems that genuinely improve the daily lives of those needing protection.  

Conclusion 

A legal framework that aspires to uphold Human Rights must not only establish adequate rights but also anticipate and adapt to the cultural context and the practicalities that shape their implementation. 

Through adopting this approach, we can hope to truly transform the experience of the law and harness a powerful tool for women to affirm their dignity and safety in society.