Good intentions: not always good outcomes

Just over 50 years ago, a strong and fair-minded young black woman named Rosa Parks started what was to become one of the 20th century’s most celebrated movements. She defended the right of a black woman to make use of public buses on the same basis as whites.

From little things big things grow. Within months, Montgomery, Alabama was in the grip of a boycott of the city’s bus system by negro residents. The US civil rights movement was born. Rosa Parks, through a single assertion of her public transport rights had created the seeds for events that were to send shockwaves across America, and indeed, around the world. Today, no black man or woman in the United States is denied a seat in a designated area of a public transport system because of their race.

Fifty years after Rosa Parks’ act of defiance, however, it is not the right to access public property by virtue of paying our taxes that is in doubt. What of the right to peaceful use and enjoyment of private property? This is property over which no public right or privilege vests. It would be fair to say that if citizens were to purchase a house and land through the fruits of their own labour and to acquire an ordinary Torrens system fee simple interest under the common law, no other party would be entitled to evict him or her without compensation on just terms. But this is not the law in Australia.

Consider this situation. A young Australian engineer Frank (not his real name) elects to work in the oil industry in the South China Sea. He works hard for many years in tough conditions that many would refuse to accept. Through the fruit of his labour, he is able to purchase a house and land back in Australia and pay most of it off within the first five years - thus achieving the great Australian dream. Only one thing is missing - he has no one to share it with.

In his all-too-infrequent time off, Frank enjoys leave in a nearby Asian country. There he meets a beautiful and seductive woman named Sri (not her real name) who befriends him. Frank is smitten by this mysterious woman of the East despite some reservations he has about her lies to him and refusal to discuss how their married life will play out. In fact, Frank and Sri do marry. Being somewhat naïve, Frank fails to realise that Sri’s motives were not as pure as he had hoped.

Soon they are living in Australia. But Sri does not want to work. She also does not want to do any housework. Sri exercises, what to a Westerner is unbelievably manipulative behaviour. Each time Frank objects to one of her wishes, she throws a tear tantrum, refuses to speak to Frank for two days at a time and withdraws all co-operation from the household until he complies.

Soon Frank is, in effect, Sri’s complete slave. He does all the paid work since Sri refuses to get a job and also does virtually all the housework except the cooking. If he refuses or complains to Sri about her behaviour, she withdraws co-operation from the marriage and accuses Frank of having insulted her.

After two years, this pattern of behaviour has become set. They have one child. Sri has now secured her real agenda of gaining permanent residency in Australia and is well on the way to securing property and wealth that would have been beyond her wildest dreams back in the slums of her country.

If Frank withdraws from the abusive relationship, he can, but only based on renouncing his marriage vows and giving a huge share of his wealth to Sri. Therefore, he continues to follow the advice of others to give Sri whatever she wants hoping that it will make her happy and their marriage secure.

But with every concession, Sri demands more and becomes even lazier refusing to do any more housework for him. Pleading with Sri for fairness and reciprocity in the marriage, Sri sneers back in contempt and eventually Frank loses his temper slapping her and telling her to leave.

Sri is an intelligent young woman, knows the system and plays it for all it is worth. Under the provisions of the Domestic Violence and Protection Orders Act 2001 applicable in the ACT where they live, Sri applies to a magistrate and promptly obtains an interim domestic violence order expelling Frank from the family home.

An interim order such as this against Frank is able to be made and successfully extended for up to four months without a requirement for hearing any evidence or argument from Frank or his lawyers.

A final order valid for two years is also able to be made against Frank. Based on the statutory provisions laid down in Section 41, this order is made giving consideration to the accommodation needs of the applicant (i.e. Sri) without requiring consideration to be given to the accommodation needs of the respondent or his contribution to the purchase of the property. As the saying goes, possession is nine-tenths of the law and Sri has won effective control of Frank’s house, land and his entire life’s savings without much more than an allegation of domestic violence in a system totally sympathetic to her demands.

To add insult to injury, the penalty for Frank trying to step foot on his own land in breach of the order is five years imprisonment (Section 34). That’s five years jail for setting foot on his own land that Frank paid $350,000 for through his own sweat, toil and even blood!

A feminist lawyer may argue that such an order does not interfere with property rights, but merely obfuscates the right to peaceful enjoyment of the property. But what more quintessential and inseparable right accrues to land ownership than the right to peaceful enjoyment the land? This is the right to occupy and enjoy its facilities. Surely, this is an even more fundamental right that accompanies land ownership than even the right to sell it.

The great English liberal philosopher John Locke once said that to deny valid property rights is to deny human rights; property precedes government and government cannot "dispose of the estates of the subjects arbitrarily".

If modern activists consider Locke too arcane or ancient for our 21st century sensibilities, how could they object to a document more fundamental to our understanding of human rights than the Universal Declaration of Human Rights proclaimed by the United Nations on December 10, 1948? In its uncompromising simplicity, Article 17 (2) of that instrument states: “No one shall be arbitrarily deprived of his property”. But isn’t this exactly what the law mandates and expects of our magistrates on each and every ex parte application for a protection or domestic violence order involving the family home?

Article 30 of the Universal Declaration of Human Rights further states that “nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”. In other words, the right to security of person (Article 3) can not be used as an excuse to arbitrarily deprive someone of his property (Article 17).

Human rights principles can not be read down in the light of some post-modernist interpretation of feminism. They exist for all time and for all mankind irrespective of the gender and political prejudices of those mortals appointed to judge us. To do otherwise would be to try and resurrect the redundant arguments of the cultural relativists that the old-style Asian dictators used to so relish, or indeed, the arguments of Islamic fundamentalists.

Human rights are human rights. No legal fiction can wear them down. They apply unequivocally and universally to all without qualification as to race in 1950s Alabama or gender as in 21th century Australia.

No one would ever deny that safety is a fundamental right whether in the home or elsewhere. The safety of men, women and children, including safety from domestic violence can and is enforced and upheld in other jurisdictions in ways that do not infringe human rights. There are already entirely appropriate criminal sanctions for assault and violence whether committed by persons of whatever gender, race, class or creed. What point is there in achieving the attainment of a particular right (that can be upheld in other ways anyway) if in doing so you transgress another fundamental human right?

In truth, of course, it could well be argued that provisions like these are not really about safety. They are about power. They are about the power of lawyers. More importantly, though, they put men in their rightful place as inherently violent tools of production and reproduction.

There are certainly well-meaning individuals who have drafted and implemented these provisions with the genuine intention of preventing domestic violence. But their zeal has been misplaced and abused to the extent that orders are used as concealment for the very type of abusive control behaviour they claim to oppose. In many cases, they effectively provide for legalised theft.

Those at the receiving end of the abuse of domestic violence orders in family law proceedings could well argue that feminist lawmakers in Australia have, in fact, done something old-fashioned Marxists could only have fantasised about. They have created a special class of land ownership in which landowners like Frank have no right to enter or use their own land. And they have backed up their gains through saturation publicly-funded campaigns that portray men only as the perpetrators of domestic violence. “Violence against women - Australia says ‘No’”. Violence and abuse of men - Australia says nothing!

It is hard to say whether the abuse of these fluid laws could better be characterised as fascist or communist. What is clear though is that they violate one of the most cherished human rights principles of our civilisation - as asserted by John Locke and by the old-fashioned post-war drafters of the Universal Declaration of Human Rights - that a man or woman is entitled to enjoy the fruits of his or her labour. Just like the “separate but equal” fiction of Rosa Parks’ segregationist south, it is now perhaps time to call the feminists’ bluff and perform radical surgery on these dangerous and often extremely unjust laws.