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The cultural and social bases for violence against women have been a focus of public attention for at least four decades. Women’s refuges were among the earliest manifestations of the feminist revival that commenced about that time, in the late 1960s. There is no doubt there has been progress, but there is also no doubt that much remains to be done.

According to the best figures available, derived from the Australian Bureau of Statistics’ Personal Safety Survey in 2005, one in three women experience at least one incident of physical violence and about one in five women experience sexual violence during their lifetime. Some women are more at risk than others. It is well established that Indigenous women are more likely than other women to be the victims of all kinds of violence, including domestic violence, sexual assaults and homicides. An Aboriginal woman is ten times more likely to die from assault than a non-Aboriginal woman, and thirty-five times more likely to be hospitalised for injuries caused by violence.

The Australian Law Reform Commission last reported on domestic violence in 1984. The establishment in 2008 of the National Council to Reduce Violence Against Women and Their Children created a new focus for co-ordinated action. The Australian Government adopted the council’s proposal for a National Plan of Action to Reduce Violence, and the Australian and New South Wales Law Reform Commissions are each currently conducting an inquiry into family violence as part of the response.

These developments reflect the continuing emphasis on the elimination of acts of violence against women by legal measures, including the operation of the criminal justice system.

GENDER ISSUES AFFECT many aspects of the criminal justice system. A good example of the complexity involved is the continuing debate about provocation as a defence to murder. Historically it was an excuse for men who kill women, an excuse which juries often accepted on the basis that men were expected to react with aggression to slights to their sexual prowess. This boys-will-be-boys approach is no longer acceptable.

The same legal principles have been applied to women who kill their abusive partner after a long period of domestic violence. I am not suggesting moral equivalence between the two, but it is hard to change the law in one respect without impinging on the other. The most difficult issue for a judge is to determine when it is permissible to leave provocation to the jury, which represents community values and prejudices. Counsel and the judge must do what they can to ensure that the jury does not proceed on outdated gender role models.

New South Wales was the first Australian jurisdiction to criminalise stalking in 1993, following California two years earlier. Other states soon followed, and Britain and New Zealand in 1997. Subsequent legislation emphasised the significance of domestic violence. New South Wales has also developed a Domestic Violence Intervention Court Model, piloted in 2005. Among its main features are domestic violence evidence kits for police; a victims’ advocate service; a specific Local Court Practice Note; a perpetrator program, which the offender can be required to attend; and regular meetings and information sharing between the police, victims’ advocates, and the departments of Corrective Services and Community Affairs.

These measures were designed to increase prosecution rates, and make the justice system more accessible and efficient. The 2008 evaluative report notes overall satisfaction with the pilot program, but no changes in the rates of assault or the reporting of prosecutions.

It is well established that a significant factor inhibiting the effective application of the criminal justice system is the degree of under-reporting of violence against women. The 2005 ABS study indicated that two-thirds of women did not report assaults to the police. One of the reasons is fear of retaliatory violence by the perpetrator and/or his relatives and friends, and other forms of retaliation enforced by close communities, ranging from discrimination and ostracism to retaliatory rape and honour crimes. Some social groups, including some Indigenous and ethnic communities, engage in such retaliation.

The dominant European culture in Australia has developed – admittedly only over recent decades – policies aimed at ensuring substantive equality between men and women, including in personal and family relations. The legal system increasingly reflects these values in substantive law and procedures. Nevertheless, there are communities in Australia with a cultural background quite inconsistent with many aspects of this majority position.

The way violence and the fear of violence is directed to women raises significant human rights issues. Only in recent years has this been recognised. A number of submissions to the National Human Rights Consultation, for example, identified violence against women as a human rights issue. The recommendations did not specifically refer to the position of women in this respect, although the recommendation that a Human Rights Act protect the right to liberty and security of persons may encompass an individual right to be protected from violence.

The human rights instrument directed expressly to the position of women is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979. This is an acceptable, but flawed, international model. It is flawed because of the need to obtain agreement from many nations, including those whose cultures permit conduct towards women that we would regard as discriminatory. The range of nations, particularly in Africa and the Islamic world, with customary and social practices that were problematic because of gender bias meant that the drafting process led to major compromises. The 1999 Optional Protocol to CEDAW provides for complaints directly to the CEDAW Committee after domestic remedies have been exhausted, making the complaints process comparable with other international treaties. In December 2008 Australia acceded to this and a joint statement by the Attorney-General and the Minister for the Status of Women said the protocol would ‘send a strong message that Australia is serious about promoting gender equality and that we are prepared to be judged by international human rights standards’.

Much Australian commentary on the subject uses CEDAW as a benchmark, including in domestic violence, so its inadequacies need to be understood. By comparison, the Convention on the Elimination of All Forms of Racial Discrimination – on which CEDAW was based – is specific and aspirational. CEDAW makes no reference to violence: even to acute forms of violence, such as honour killings. This was not an accident. Many nations would have objected. If it had been included, the convention may never have come into force.

CEDAW is subject to more extensive reservations than any other international human rights instrument. A particularly egregious example is the reservation of Bangladesh, and similar reservations by Egypt and Libya, to Article II, which was designed to eradicate discrimination by new laws and policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate. The reservation states simply: ‘The Government...of Bangladesh does not consider as binding upon itself the provisions of Articles II...as they conflict with Sharia Law based on the Holy Q’uran and Sunna.’ CEDAW does not contain an effective mechanism for preventing incompatible reservations.

Despite these deficiencies, significant effort has been directed to expanding CEDAW’s reach through interpretation by the CEDAW Committee. General Recommendation No. 19 of 1992 stated that ‘gender-based violence’ constitutes ‘discrimination’ within the meaning of Article I. This, the committee declared, extends to any such violence which impairs other human rights, such as the right to life; the right not to be subject to cruel, inhuman or degrading treatment or punishment; the right to liberty and security of the person; and the right to equality in the family.

Violent conduct of this character is often gender-specific, but it varies from one nation or culture to another. Despite the committee’s attempt to extend its jurisdiction by interpretation, it is by no means clear that it can apply to each of the human rights protected by other international covenants. Such conduct can be discriminatory but – save in the case of honour killings, the right to life – there is little evidence of systematically different treatment.

It is the deficiencies in the convention that have resulted in the attempt to stretch the concept of discrimination beyond its natural borders. CEDAW is not an adequate international standard. It seems inappropriate that violence against women is only regarded as a human rights issue insofar as it is ‘discriminatory’. Everyone has a right to be free from violence or the threat of violence.

THE RECOGNITION OF a right to ‘security’, often expressed in combination with a right to ‘liberty’, can be traced back to the French Declaration of the Rights of Man and of the Citizen of 1789. It is reflected in most contemporary human rights instruments since Article III of the Universal Declaration, which protects a person’s right to life, liberty and security.

Despite this early recognition, the idea of personal security as an individual right has been lost. It is, perhaps, the least developed of any of the human rights protected by international covenants. It is, however, the only source for the recognition of a right to be protected from violence that does not involve death, torture or cruel and unusual punishment.

Under the European Convention the right to personal security has been denuded of any operation independent of the protection of ‘liberty’. Throughout Europe, and therefore in England, the idea that the state may acquire through its treaty commitments an obligation to protect individuals from violence has been expressly rejected. The position is somewhat different under the human rights provisions in South Africa and Canada.

The human rights literature emphasises the responsibility of states to take three kinds of action with respect to human rights protected by treaties or customary international law. These are duties to fulfil rights by taking positive actions, to respect and protect rights from infringement by states and others. There is considerable variation in the way these are defined in domestic laws.

An internationally derived obligation to protect citizens from violence is not well established, beyond the clear categories of life, torture or cruel and unusual punishment. The most likely source of the development of a right not to be subject to violence is the recognition of the right to security in numerous international instruments. This is reflected in the human rights legislation adopted in the Australian Capital Territory and Victoria, and was proposed by the National Human Rights Consultation.

Such instruments do not expressly identify the qualifications that are necessarily implied in such an absolute statement. For example, a state has many reasons to deploy violence, particularly in the exercise of legitimate police functions.

More significant, in the context of the human rights debate, is the tension that has always existed between liberty and security in political philosophy. In critical respects, the tension between the power of the state as the protector of public security, on the one hand, and as the potential source of persecution, on the other, underpins liberal-democratic political philosophy and determines much of the content of the rule of law.

Traditionally a contrast is drawn between liberty as an individual right and security as a public or collective interest. As the security of the person is regarded as an individual right, there is a conflict between rights, rather than a conflict between a right and an interest. Human rights advocates are very comfortable concluding that a right prevails over an interest, but there is no generally accepted mechanism for dealing with a conflict between rights. As Jeremy Waldron has put it: ‘Rights versus rights is a different ball game from rights versus social utility. If security is also a matter of rights, then rights are at stake on both sides of the equation...The business of conflicts of rights is a terribly difficult area – with which moral philosophers are only just beginning to grapple.’

There is a distinct reluctance among human rights scholars to recognise the right to personal security as any kind of individual right. It appears that recognition of a right to personal security may be seen to threaten the fullest