Labor’s childcare plan: parents, children, and educators stand to benefit, but questions remain


File 20190428 194616 rzox.jpg?ixlib=rb 1.1
Hundreds of thousands of Australians parents would be in work if childcare was more affordable.
from shutterstock.com

Jen Jackson, Victoria University

Labor’s proposed A$4 billion reform to the childcare subsidy on Sunday confirms that early childhood is a key policy issue this election. This is on top of Labor’s previous announcement of 15 hours of funded preschool for every Australian three-year-old.

The latest announcement will no doubt be welcomed by families balancing the costs of childcare against the benefits of participation in paid work. In 2015, the Productivity Commission estimated around 165,000 Australian parents would like to work more, but were prevented due to poor accessibility or affordability of suitable childcare.




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Under Labor’s proposal, families on incomes up to A$174,000 with children under five would be better off on average by A$26 a week, or A$1,200 a year per child. Most families earning up to A$69,000 would get their childcare free. Currently, they receive a subsidy of 85%. Labor’s proposal would save them up to A$2,100 annually per child.

The current subsidy gradually tapers down as earnings increase. The lowest subsidy available is 20% for the highest-earning families, before it cuts out at A$351,258.
Families on incomes above A$174,000, under Labor’s plan, would continue to receive the same level of support as under current arrangements.

The current subsidy was introduced as part of the Coalition’s major childcare reforms (worth A$3.5 billion) in 2018, which included a means-tested subsidy and removal of annual caps. The reforms benefitted an estimated one million lower-income families – but also left around 280,000 families worse off, including families with neither parent in work.

ANU modelling had predicted that while the reforms would benefit low-income families, the activity test would mean families not working or studying would be at risk of missing out.




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This is where early childhood policy gets complicated. Policies can be motivated by different goals. The Coalition reforms were aimed at encouraging parental workforce participation. Labor’s proposal for the childcare subsidy seem similarly motivated.

But parents are not the only beneficiaries of childcare subsidies. Quality childcare also benefits children’s learning. Many childcare programs for four-year- olds (and increasingly, three-year-olds), incorporate preschool. For children of all ages, Australian childcare providers must provide a play-based learning program, guided by the national framework.

That’s why childcare and preschool services are all known as early childhood education and care: whenever children are being cared for, they are also learning. Even a nappy change offers opportunities to support children’s learning, as skilled educators use playful, caring interactions to help young children develop skills like communication, trust and well-being.

Educators can also help families recognise these opportunities, so learning continues at home. Children in low-income households often have fewer opportunities to learn, due to factors such as stress and limited resources for investment.

By supporting access to quality early childhood services, governments can help families learn everyday ways to enhance their children’s learning.




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To maximise benefits for children, all early childhood services need skilled, professional staff. Labor’s promised wage increase of 20% over eight years for early childhood educators addresses an issue that has been in the too-hard basket for too long.

Research has shown many Australian early childhood educators are paid so little they are financially dependent on others in their households — ironically while enabling financial independence for other working women.

Low wages place downward pressure on the quality of early childhood programs. Educators’ qualifications are lowest in low-income communities, where families cannot afford to meet the costs of higher wages. Government subsidies can help to break the link between educators’ wages and families’ ability to pay fees, so the best educators can reach the children who most need them.

Of course, the devil is in the detail when it comes to policy implementation. Labor has not specified how the wage increases will be delivered, instead committing to further consultation with the sector. Big questions remain about how government subsidies – to parents or educators – will be absorbed into a sector with for-profit and not-for-profit providers.

Close monitoring of the impact on childcare costs will be essential. Labor’s plan includes asking the Australian Competition and Consumer Commission to investigate “excessive” childcare fees. But can support for families be increased without stimulating an increase in fees? Can educators be supported to earn a fair wage, while keeping prices fair for families?

There is much to be gained by engaging with these questions. When parents are working, the economy benefits. When children are learning, everyone benefits, as the impact of early learning lasts throughout school and beyond. Countries like Sweden and Finland show what may be possible when parents’ and children’s needs are prioritised equally.

We owe it to Australia’s children to keep these issues on the election agenda.The Conversation

Jen Jackson, Education Policy Lead, Mitchell Institute, Victoria University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Shorten promises $4 billion for child care, benefitting 887,000 families


Michelle Grattan, University of Canberra

In a big hit announcement before the start of pre-polling, Bill Shorten on Sunday will pledge a A$4 billion boost for child care, making it cheaper for every family earning up to $174,000.

From July 2020, 887,000 families would benefit from the ALP plan, with some being up to $2,100 better off.

Under the initiative:

  • families with children under five on incomes up to $174,000 would be better off on average by $26 a week – $1,200 a year – per child

  • the majority of families earning up to $69,000 would get their child care free. This would save them up to $2,100 annually per child.

Families on incomes above $174,000 would continue to receive the same level of support as under current arrangements.




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The plan is central to Labor’s campaign on cost of living, with Shorten describing it as “massive cost of living relief for nearly one million families struggling with the costs of child care”.

“Under the Liberals, the costs of child care has gone up 28%, costing families using long day care $3,000 more a year.

“Labor will increase the subsidy families receive, we will kick start the process to limit out-of-control child care price increases, and we will review the impact of the system on vulnerable and very low-income families,” Shorten says.

“This is a $4 billion investment in early education, in working parents and in helping families with the rising cost of living. Labor can pay for cheaper child care for working families because unlike Scott Morrison and the Liberals, we aren’t giving bigger handouts to the top end of town,” Shorten says. The $4 billion cost is over three years.


Source: ALP

The main elements of Labor’s plan include:

More child care fee support

The subsidy rate would be increased from 85% to 100% up to the hourly fee cap (currently $11.77 per hour for long day care) for families earning up to $69,000 who meet the activity test. This would make child care free, or almost free, for up to 372,000 families.

The present tapered reduction would be updated to reflect the higher subsidy rate.

Families earning between $69,000 and $100,000 would receive a subsidy rate between 100% and 85%, up to the hourly fee cap.

Families earning between $100,000 and $174,000 would receive a subsidy rate between 85% and 60% up to the cap – an effective increase of 10%.

Families accessing approved Centre Based Child Care, Family Day Care and Outside School Hours Care, including holiday care, would all benefit from the higher subsidy.




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Cracking down on excessive fee increases

Labor would give the Australian Competition and Consumer Commission a new role of investigating excessive fee increases and unscrupulous child care providers. Findings would be made public through mychildcarefinder.

The ACCC would also look at mechanisms to ensure greater controls on child care fee increases to keep child care affordable.

Reviewing the system for vulnerable children

Labor says that in the nine months of the current subsidy system, the number of vulnerable and very low-income families using it has fallen.

“Reports suggest the numbers accessing the Childcare Safety Net have fallen by almost half, from 35,000 to 21,000.

“Labor will urgently review the new system to make sure that vulnerable and low-income families and children aren’t falling through the cracks,” Shorten says.

Labor has already committed to every three-year-old child being able to receive 15 hours of subsidised preschool. It has also said it would extend the current arrangement for four-year olds.

Shorten says this would create “a two-year program to support the most important years of a child’s development and ensuring our kids don’t fall behind the rest of the world”. For many children this would be free or nearly free.




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Labor is also set to make an announcement on boosting the wages of child care workers, who are among the low paid.

The first votes will be cast at pre-polling stations on Monday, as the campaign ramps up in its final three weeks. Scott Morrison and Shorten will meet in Perth late Monday for their first face-to-face debate.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Catholic Church is investigating George Pell’s case. What does that mean?


Ian Waters, University of Divinity

Cardinal George Pell was this week sentenced by a Victorian court to six years’ jail for sexually abusing two choirboys, with a non-parole period of three years and eight months.

Although Pell was found guilty of the charges against him in December, he has remained a Cardinal in the Catholic Church. The Church previously said it would await the outcome of an appeal before taking action, but it has since confirmed that an investigation of Pell’s case will be conducted by the Congregation for the Doctrine of the Faith.

An American former cardinal was recently expelled from the priesthood by the Church following a canonical trial into claims of child sexual abuse. Here’s what it could look like if Pell was subject to a similar process.




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Canonical trials are governed by the rules of the Church

Most cases concerning the wrongdoing of Catholics are tried in secular courts. The decisions and punishments handed down by the courts are normally accepted by the Church as sufficient.

But the Church will conduct its own examination of cases where the church’s canon law requires punishment outside the competence of the courts of the land. That includes the excommunication of a member of the church, or the dismissal of a priest or bishop from the clerical state – often referred to as defrocking.

Tribunals to adjudicate matters that concern the Church’s own internal governance are principally governed by the rules and regulations of the Church, which are known as canon law (from the Greek etymology κανών or kanon, meaning a “rule”). These regulations are set out in the Church’s Code of Canon Law, which came into effect in 1983.

Since such trials are conducted because of the requirements of canon law, they are known as “canonical trials”.




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Sexual abuse cases are handled by the Holy See

Catholic Church tribunals are normally held in the diocese of the parties to the case. The bishop of the diocese can judge cases for his diocese. But since bishops often have little or no in-depth knowledge of canon law, most cases in Catholic Church tribunals are handled by judges (clerics or laypersons) appointed by the bishop. The presiding judge is a priest known as the judicial vicar.

Some matters cannot be introduced at a diocesan tribunal, but are reserved for the various tribunals at the Holy See. This includes cases involving dioceses and bishops, and certain serious matters regarded as crimes in the Catholic Church. Examples of this would be matters of sacrilege (offences against the sacraments), and sexual offences by a cleric against a minor under the age of 18.

A college of judges try difficult cases

Usually a single judge presides over contentious and penal cases. But a college of three or five judges will normally try more complicated or difficult cases – especially if the prescribed penalty is an excommunication from the Church, the dismissal of a cleric, or if the case concerns the annulment of a marriage or an ordination.

Other officers of the tribunal include the promoter of justice, who is the prosecutor in penal cases. The tribunal also has notaries who swear in witnesses, and commit their testimony to writing.

Like any legal system, parties in a case have the right to appoint an advocate who can argue for them at the tribunal. If a person cannot afford an advocate, the tribunal can assign one to them free of charge.




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Defendants are presumed innocent

Catholic Church tribunals do not use the adversarial system used by the courts of the common law tradition. Rather, Catholic Church tribunals use the inquisitorial system law found in most European legal systems. That means the judges lead the investigation.

The standard of proof used by the Catholic Church tribunals is “moral certainty”. Certainty results from examination in good conscience of the available evidence. This isn’t the same as “absolute certainty”, but it’s more than mere probability. It is normally stricter than guilt “beyond reasonable doubt”, which is usually held to be the absence of doubt based on reason and common sense.

As a general rule, the defendant has the presumption of innocence, which means the defendant will win by default unless a majority of the judges is convinced with moral certainty of the petitioner’s case.The Conversation

Ian Waters, Professor, Lecturer, Department of Moral Theology and Canon Law, University of Divinity

This article is republished from The Conversation under a Creative Commons license. Read the original article.

National Redress Scheme for child sexual abuse protects institutions at the expense of justice for survivors


Kathleen Daly, Griffith University and Juliet Davis, Griffith University

Australians can be proud of what the Royal Commission into Institutional Responses to Child Sexual Abuse accomplished, but they cannot be proud of the National Redress Scheme (NRS).

With the Joint Select Committee’s review of the NRS set to be released in the coming weeks, it’s important to look back on how the NRS emerged and the ways it strayed from the recommendations of the royal commission.

In September 2015, the royal commission released its report on redress and civil litigation. It proposed a redress scheme with three elements: a direct personal response, counselling and psychological care, and a monetary payment.




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And it set forth principles to guide redress, such as being “survivor-focused” by providing justice to survivors and not protecting the interests of institutions.

On June 19 2018, the NRS bill passed with bipartisan support in both houses of parliament, but it did not adhere to these principles, nor reflect the spirit of what the royal commission had recommended.

Protecting the interests of institutions ultimately prevailed over providing justice to survivors.

So how and why did this happen?

Creating a national scheme

Creating a national scheme was a complicated exercise. To do so, Australian states had to refer their legislative power for redress to the Commonwealth. Without state referral, non-Commonwealth institutions – both government and non-government – could not participate.

The Commonwealth began negotiating with the states in January 2016. In November that year, then Attorney-General George Brandis and then Minister for Social Services Christian Porter issued a press release announcing that a Commonwealth Redress Scheme (CRS) would be established.

The release said the maximum payment would be $150,000, not the $200,000 figure the royal commission had recommended.

That day, Porter held a press conference where he was asked to explain why the maximum was reduced. He said:

we have had intensive negotiations with the states and territories, and with churches and charities. And we were trying to design a monetary redress payment that offered appropriate recognition, but maximised our opportunity to get other organisations to opt-in to the scheme.

In October 2017, the CRS bill was introduced into parliament. The government’s strategy was to move the bill along while at the same time encouraging states and non-government institutions to opt-in to the scheme. If no states did so by July 1 2018, the scheme would be for survivors of abuse in Commonwealth institutions only.

That day, Porter was asked on ABC radio why people with convictions for sexual offences or other serious crimes were not eligible for the scheme. Porter explained that the decision was made in “deep consultation” with state attorneys-general who were of the “almost unanimous” view that to “give integrity and public confidence to the scheme”, there needed to be limitations for those who “had committed serious crimes, particularly sexual offences”.

The exclusion was a condition for the states to opt-in, and a “powerful reason why [the] decision was made”, according to Porter.

In the same interview, he dropped another bombshell: counselling and psychological care would be capped at $5,000 per person. No explanation was given. The royal commission did not recommend a criminal history exclusion nor a cap on counselling.

As the CRS bill moved through parliament, media stories and submissions to the Senate Community Affairs Legislation Committee focused on the reduced maximum payment, criminal history exclusion, and cap on counselling. Concerns were also raised that the scheme was for sexual abuse only, and that important scheme details were to be contained in delegated legislation, or what is also termed “the rules”. This meant the minister would announce them at a future date, and they would not be subject to parliamentary scrutiny or debate.

Two crucial elements in the delegated legislation were the Assessment Framework and the Direct Personal Response Framework. The Assessment Framework assesses both the monetary payment and monetary support for counselling and psychological care. The Direct Personal Response Framework outlines a limited number of ways a responsible institution may engage with a survivor, including an apology or statement of regret, and steps taken to prevent abuse in the future.

It was not until August 13 2018, two months after the passage of the NRS, that these frameworks were tabled by the minister. Both departed strongly from what the royal commission had recommended.

The shift from a Commonwealth to a national scheme occurred in May 2018, when a COAG intergovernmental agreement on the NRS was signed by New South Wales and the ACT. New South Wales introduced legislation referring the power to make laws about redress to the Commonwealth.

Later that month, the NRS bill was introduced into federal parliament. A Senate review in March had called attention to gaps between what the Royal Commission had recommended and what was in the CRS bill. The NRS bill maintained and, at times, widened these gaps.

The widening gaps between the royal commission and the NRS

We identified 17 contentious matters in the NRS bill.

Five matters that received considerable attention were the maximum monetary payment, criminal history exclusion, cap on counselling, assessment framework, and the eligibility of sexual abuse only.

But 12 others were just as consequential.

They related to government and institutional responsibilities (funder of last resort and institutional opt-in timeframe); application and payment requirements (single application, indexation of payment, acceptance period, deed of release, lack of external review); other eligibility criteria (no application from gaol, citizenship and residency, age limit); scheme reporting; and the direct personal response.

All 17 matters departed from what the royal commission recommended except three: the eligibility of sexual abuse only, indexation of payment, and no external review.

The pressure points for the departures were economic and political costs to government and non-government participants, and to a lesser degree, the convenience of the scheme operator.

As the NRS legislation moved toward passage in June 2018, many politicians said it was “imperfect”, but they would support it. Such support was often couched in pro-survivor rhetoric. For example, Senator Louise Pratt said:

Survivors have in some instances waited all their lives for justice, and they should not have to wait a minute longer.

In fact, politicians’ hands were tied: they could not change the bill because this would require renegotiating the framework of redress decided by members of the state and federal executive. Such delay would jeopardise the Commonwealth’s promised start date of July 1 2018.

We want to see a fair and effective redress scheme. To make that happen, elements in the current scheme will need to change.

But is there any hope for change? Perhaps.

A bipartisan Joint Select Committee (JSC) on the Oversight of the Implementation of Redress Related Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse has been receiving submissions and holding hearings over the past five months.




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Listen to abuse survivors and advocates to clear the way to a national redress scheme


The JSC has learned that survivors are having many problems applying to the scheme and understanding how best to present their case. Witnesses to the JSC and committee members themselves have expressed disbelief about the Assessment Framework: it privileges penetrative sexual abuse above all other types, and it caps the monetary support for counselling based on the type of abuse.

We provided evidence to the JSC of the many ways the NRS departs from the royal commission’s principles of redress.

We also provided evidence of how poorly the scheme compares with other world redress schemes in the ways it assesses the severity and impact of abuse, supports counselling, and excludes certain groups. Compared to numerous examples that the royal commission offered for the direct personal response, the NRS stuck to a bare minimum and severely weakened the power of this innovative redress element.

Will the JSC report, delivered in early April, produce findings that make politicians, the media, and the public take notice?

The timing is not optimal with a federal election looming and other matters taking greater precedence. Post-election, let’s hope that the failure of the NRS to provide justice to survivors receives the attention it deserves.The Conversation

Kathleen Daly, Professor of Criminology and Criminal Justice, Griffith University and Juliet Davis, Research Fellow, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How an appeal could uphold or overturn George Pell’s conviction


David Hamer, University of Sydney

A criminal trial often helps to provide finality for the accused, and closure for victims and society. But following this week’s news, George Pell’s barrister, Robert Richter QC, indicated Pell maintains his innocence and the legal team have already lodged an appeal. Richter said this would be pursued following Pell’s sentencing.

Pell’s conviction no longer appears final, but provisional. The Vatican initially said it would wait until the appeal outcome before launching its own investigation that could lead to the Cardinal being defrocked. But it has now been confirmed the investigation is starting regardless.

The Australian government, though, said it will only strip Pell of his Order of Australia honours if he loses the appeal. Meanwhile, the media and community are awash with confusion about the verdict that came in a retrial after the first trial concluded with a hung jury. It seems many people are holding their breath until the appeal is heard.

Defendants generally only get one appeal, though that one appeal may be taken further to the High Court. If Pell’s appeal is dismissed, he will require exceptional intervention from the Government, which is very rare.

So, what is an appeal, and what might it look like for someone with Pell’s profile and convictions?




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How long would an appeal take?

The appeal process is fairly elaborate. It requires the Court of Appeal’s leave (or approval). If given, the defence and prosecution will make written submissions to the court. There is then a hearing, on the basis of which the court will make a decision, explain its reasoning, and make appropriate orders.

In this case, the court may dismiss the appeal, allow the appeal and order a retrial, or allow the appeal and order that Pell be acquitted. With a crowded list of cases, this entire procedure often takes more than a year. The Pell appeal may be relatively simple and decided more quickly.

Bail was revoked pending sentencing, anticipating a custodial sentence, and Pell will remain in custody until the appeal. If the appeal is upheld, the court may make a decision immediately following the hearing and publish its reasons subsequently.

Evidence at the trial

The trial did not involve a great deal of evidence. One of the alleged victims had made a report to police in 2015, claiming the assaults occurred after mass. The other alleged victim died of an accidental heroin overdose in 2014, apparently without reporting abuse.

Like many delayed sexual assault cases – almost 20 years in this case – there simply isn’t much evidence available. At Pell’s trial, there seemed to have been little more than the complainant’s allegations and Pell’s denials. Pell did not testify. Video of his denials to police were played to the jury.

The jury may have preferred to see how Pell coped with cross-examination. But he has the right to silence, and his failure to enter the witness box can’t be used against him.

A few other witnesses gave evidence about the masses delivered by Pell at St Patrick’s Cathedral, where the abuse allegedly took place. They supported the defence’s claims of the impossibility of the abuse taking place. Witnesses noted the then Archbishop Pell would have been accompanied at all times during the crowded events and would not have had the opportunity to commit the offences.

Other types of evidence often relied on by the prosecution in child sexual abuse trials did not feature in the Pell trial. The prosecution wasn’t able to present the complainant’s earlier reports of abuse. It seems he told no one prior to the police report.

The absence of earlier reports would not necessarily help the defence. Courts now recognise there are many reasons why victims of child sexual assault find it hard to talk. They feel confused and powerless, particularly where the offender is in a position of authority.




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Many child sexual assault prosecutions rely on evidence of other alleged victims to demonstrate the defendant’s propensity or tendency for child sexual abuse. Such evidence was potentially available in the Pell trial – other allegations had been made from his time in Ballarat in the 1970s.

However, this evidence was not admitted at trial. The two sets of allegations were kept entirely separate (and the trials split), perhaps to avoid the risk of jury prejudice. Pell’s Melbourne convictions (in the cathedral trial) were suppressed while the Ballarat charges (swimmers trial) were pending.

It was only when the prosecution dropped the Ballarat charges that the convictions on the Melbourne charges were made public.

What would the defence appeal?

Because only limited evidence was relied on at trial, relatively few legal issues were raised. This means the defence may find it difficult to identify any legal error as a ground for appeal. Richter has indicated the defence will claim there were errors regarding the constitution of the jury and the defence not being permitted to use a graphic.

If errors are found, the Court of Appeal would still dismiss the appeal if the errors seem too slight to have affected the outcome.

The other defence argument on appeal could be that the conviction was unreasonable. The jury simply got the facts wrong. Here the defence may face obstacles. The Court of Appeal is unlikely to entertain claims the jury was prejudiced and blamed Pell for the Church’s inadequate response to other paedophile priests.

Appeal courts generally trust a properly directed jury will comply with its duties. Appeal courts are also generally wary of overriding jury verdicts, particularly where they rest upon witness credibility, as in this case. Inconsistencies and gaps in a complainant’s account may be attributed to the delay rather than fabrication.

However, the Court of Appeal may feel well placed to assess the defence argument of impossibility. And in this case, unusually, the court may be able to assess the complainant’s demeanour, since the witness testified over video link.

This may be one of those exceptional cases where the court is prepared to say the jury got it wrong. But the court may also hesitate to override the jury – the community’s representatives – in a case that has opened such a rift in Australian society.




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After Pell, the Catholic Church must undergo genuine reform


The Conversation


David Hamer, Professor of Evidence Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

As children are airlifted from Nauru, a cruel and inhumane policy may finally be ending



File 20181023 169831 chyly1.jpg?ixlib=rb 1.1
If refugee and asylum seekers are not resettled in Australia, the humanitarian crisis will only worsen.
AAP/Jeremy Ng

Alex Reilly, University of Adelaide

Australia’s off-shore detention policy is unravelling. Predictably, after five years of detention, the mental health of adults and children who have been left in indefinite detention on Nauru is collapsing. On Monday, 11 children and their families were flown to Australia for urgent medical attention.

The New Zealand deal, under which some asylum seekers could be resettled in New Zealand as long as they are banned from ever coming to Australia, is now being seriously considered.

Good politics, bad policy

From the middle of 2013, when off-shore processing was re-started on Nauru and Manus Island, the Rudd government, and later the Abbott government, made bold and irresponsible claims that no asylum seeker attempting to enter Australia by boat would ever be resettled here.

This played well to an Australian public spooked by a dramatic rise in boat arrivals under the Rudd government between 2009 and 2013, and set the foundation for a policy that has systematically brutalised hundreds of innocent people.




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The claim, in the name of deterrence, relied on hopes Australian governments would find places to resettle the asylum seekers and refugees on Nauru and Manus Island in other countries. But there was no plan as to where they might go and, predictably, resettlement proved very difficult.

An agreement with the Cambodian government failed because Cambodia lacks the capacity to resettle people of such different ethnic and cultural backgrounds.

Malcolm Turnbull seemed to have stumbled upon a resolution when the Obama administration agreed to take sone refugees from Nauru and Manus.

The current US administration has resettled 276 people from Nauru and rejected a further 148. There may be more resettlements to come, but there is no clear timetable, and it will be a resolution for only some of the 652 people remaining on Nauru.

Inexplicably, the Australian Government has repeatedly rejected an offer from New Zealand to resettle 150 refugees there, fearing that people will take advantage of open migration between Australia and New Zealand and will end up resettling here.

Under renewed pressure from opposition parties, the government is reconsidering the New Zealand offer, but only if there is a travel ban preventing refugees ever coming to Australia. Prime Minister Scott Morrison has drawn, once again, on the tired justification that to allow asylum seekers any right of entry to Australia may encourage people smuggling.

Why the people smuggling argument does not stack up

The people smuggling narrative does not withstand reasonable scrutiny. How much cruelty to innocent people on Manus and Nauru is really needed to stop the boats?

A comparison with the Howard years is instructive. From 2001 to 2008, of the 1,153 refugees and asylum seekers resettled on Nauru and Manus Island, 705 went to Australia, 401 to New Zealand and 47 to other Western countries. Most were resettled between 2002 and 2004.




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Resettling refugees in Australia would not resume the people-smuggling trade


These resettlements were not followed by a resumption of the people smuggling trade. From 2002 to 2007, 18 boats arrived with 288 asylum seekers. In addition, one boat was turned back with 14 passengers.

What remained important for deterrence was the possibility of being detained offshore with no guarantee of being settled in Australia and New Zealand. Only when this possibility was removed (when the new Rudd government dismantled the Howard government’s offshore processing and turn-back policies) was there a dramatic spike in asylum seekers arriving by boat.

The message of deterrence is clear

The systemic cruelty of detaining refugees in offshore detention centres indefinitely has sent an unequivocal message to any asylum seekers who might contemplate seeking asylum in Australia by boat. No person would countenance subjecting themselves to the mental and physical trauma suffered by detainees on Nauru and Manus Island for the chance of receiving protection in Australia. And no parent would risk subjecting their child to a lifetime of mental illness.

The Australian government has proved its mettle. It is prepared to subject innocent people to the cruellest of punishments, to disregard basic principles of human dignity, and to ignore its obligations under international law. This is deterrent enough for any prospective boat rider.

Time to end an inhumane policy

It is well past time to resettle every refugee and asylum seeker on Manus and Nauru in Australia. If this is done while the policies of boat turn backs and offshore detention remain in place, this will not lead to a resumption of people smuggling operations. And if I am wrong in this, we can be confident of stopping the boats again, as the government did with startling effectiveness in 2001 and 2013.

It seems that the government may finally be softening its untenable hard line. With no other resolutions on the table, most of the refugees on Nauru and Manus must end up in Australia or New Zealand.

Until this happens, the mental health of refugees stuck on Nauru and Manus will continue to deteriorate, and courageous whistleblowers will continue to risk their employment revealing the brutality and trauma of conditions in detention.

All this pain and suffering, and economic cost, for a deterrent that is not needed.The Conversation

Alex Reilly, Director of the Public Law and Policy Research Unit, Adelaide Law School, University of Adelaide

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The royal commission’s final report has landed – now to make sure there is an adequate redress scheme



File 20171217 17878 1ykrkkb.jpg?ixlib=rb 1.1
The royal commission has handed down its final report – now the real work begins.
Shutterstock

Ben Mathews, Queensland University of Technology

The Royal Commission into Institutional Responses to Child Sexual Abuse has performed its task magnificently. Its scale, complexity and quality is unprecedented. Its work is already being acknowledged internationally as a model of best practice.

As a nation, we can be proud of the commissioners and their staff. We should acclaim the courage of all survivors, including those who informed the commissioners about their experiences, and we should honour those who have not lived to see this day.

We must recognise the integrity and strength of those who advocated for the inquiry, including survivors, their families, journalists and police. We should applaud former prime minister Julia Gillard for initiating the commission, and the current federal government for ensuring it was adequately resourced.

But this is not the end. The real work begins now. Australian governments and major social institutions now have not only the opportunity, but the responsibility, to create lasting social change. Their responses will be monitored here, including through requirements to report on their actions, and around the world.

The royal commission’s impact

This watershed inquiry has created the conditions for a seachange in how society deals with child sexual abuse in institutions, which can flow to our treatment of sexual abuse in other settings.

Our society’s leaders can build progress from the pain of former failings. Not meeting this responsibility would surely stick as a lifelong regret for those in positions to cement change. Fulfilling this imperative can leave a legacy of which these government and institutional leaders can be proud.

Substantial progress has already been made. The commission’s earlier reports have influenced important changes to civil justice systems, criminal justice systems, organisational governance, and prevention, including situational prevention in child and youth-serving organisations.

The Child Safe Standards now promoted by the commission are substantially embedded in legislation in several states, requiring organisations to adopt comprehensive measures to prevent, identify and respond appropriately to child sexual abuse.

Civil laws have been amended in most jurisdictions to allow claims for compensation, holding individuals and organisations accountable.

In some states, new requirements to report known and suspected cases apply through special “failure to report” and “failure to protect” offences in criminal laws. They also apply through separate reportable conduct schemes that add essential independent external oversight.


Read more: Royal commission recommends sweeping reforms for Catholic Church to end child abuse


Yet much remains to be done. The reforms already made in some states must be adopted elsewhere to create national consistency.

Accountability of individuals and organisations is essential to create cultural change, and needs to be achieved through both civil systems (such as following Western Australia’s recent bill enabling lawsuits against organisations that previously could not be sued, such as the Catholic Church), and criminal systems (for example, prosecuting those who harbour offenders, and removing criminal law principles that compromise criminal prosecutions).

Other state and territory mandatory reporting laws need to be harmonised, as recommended by the commission. Many of the commission’s new 189 recommendations are rightly directed towards prevention, especially through the Child Safe Standards, including their requirements for education, codes of conduct, situational prevention, and the commitment required of organisations’ leadership.

We must focus our efforts on the future, but we must also ensure we properly deal with the past. Perhaps the single most important aspect of this is the redress scheme.

What happens now with redress?

The national redress scheme is behind schedule and must be finalised with sufficient funding, and government and institutional commitment.

The bill for the scheme remains before parliament, awaiting a committee report due in March 2018. It is yet to receive the commitment of all states, territories, and relevant organisations.

The commission recommended the scheme be operational by July 1, 2017, with an upper cap of A$200,000 and an average redress payment of $65,000. Under the bill, the scheme’s cap is $150,000, substantially below the recommendation, and even further below the average payment awarded in Ireland of more than €60,000 (about A$92,200). In Ireland, the highest payment was more than €300,000 (about A$461,000).

The Australian scheme contains three elements. First, a monetary payment as tangible recognition of the wrong suffered by a survivor. Second, access to counselling and psychological services (estimated at an average of $5,500 per person). Third, if requested, a direct personal response from the responsible institution(s), such as an apology.

Not all survivors will apply to the scheme, as many are not financially motivated. However, it is an essential part of a healing response. This has been shown internationally in Canada, Ireland and elsewhere.

Redress schemes are more flexible and speedy, with less formality and cost, and less trauma and confrontation, than conventional legal proceedings. Payments are not intended to replicate the amount that would be payable under a formal civil compensation claim, and instead are far lower.

Accordingly, institutions should recognise the lower financial commitment required to discharge their ethical obligation to participate compared with their liability in formal civil compensation amounts, especially since recent reforms to civil statutes of limitation have removed time limits and allow a claim to be commenced at any time.

Ten key aspects of the proposed Australian scheme are:

  1. People are eligible to apply to the scheme if they experienced sexual abuse in an institution while they were a child, before July 1, 2018.

  2. A lower evidentiary threshold applies, meaning that eligibility for a redress payment is assessed on whether there was “a reasonable likelihood” the person suffered institutional sexual abuse as a child.

  3. Applicants who have received redress under another scheme or compensation through a settlement or court judgment are still eligible, but prior payments by the institution will be deducted from the amount of redress.

  4. Only one application per person can be made; where a person was abused in more than one institution, provisions enable the decision-maker to determine the appropriate share of each institution.

  5. Applicants can access legal assistance to help determine whether to accept the offer of redress.

  6. A person who accepts an offer of redress must sign a deed of release, meaning the institution(s) responsible for the abuse will not be subject to other civil liability.

  7. Payments are not subject to income tax.

  8. Reviews of decisions are limited to internal review, and not to merits review or judicial review.

  9. Criminal liability of offenders is not affected.

  10. The scheme is intended to open on July 1, 2018, and operate for ten years; applications need to be made at least 12 months before the closing date of June 30, 2028.


Read more: When it comes to redress for child sexual abuse, all victims should be equal


Five further factors need to be accommodated by the scheme to ensure it functions properly and complies with the clear recommendations of the royal commission.

  1. The upper cap should be $200,000 to ensure sufficient recognition of severe cases.

  2. To ensure equal access to the scheme, legal assistance must be made available to assist people in making applications.

  3. Governments and institutions should opt in as soon as possible and commit resources to discharge their duty to participate in the scheme.

  4. Governments – federal or state – should be the funder of last resort in all cases where the institution is unable to reimburse the Commonwealth (for example, where the institution no longer exists, or lacks resources to participate).

  5. The method of determining the amount of the payment, based on the severity of the abuse, its impact, and other relevant factors, must be made available as soon as possible so it can be adequately debated.

The commission’s work contributes a historic, international legacy. The sexual abuse of children in institutions will be revealed in more nations in coming years. This will involve some of the same religious institutions in which it has been found here to be so prevalent, and so heinously concealed and facilitated. Simply due to population, countless children will be shown to be affected.

The ConversationFor this reason, our governments and institutions must now ensure their actions add to the royal commission’s example, and demonstrate to other countries how civilised societies should respond.

Ben Mathews, Professor, School of Law, Queensland University of Technology

This article was originally published on The Conversation. Read the original article.

Don Dale royal commission demands sweeping change – is there political will to make it happen?


Sophie Russell, UNSW and Chris Cunneen, UNSW

The Royal Commission into the Protection and Detention of Children in the Northern Territory’s final report, which was handed down on Friday, revealed “systemic and shocking failures” in the territory’s youth justice and child protection systems.

The commission was triggered following ABC Four Corners’ broadcasting of images of detainee Dylan Voller hooded and strapped to a restraint chair, as well as footage of children being stripped, punched and tear-gassed by guards at the Don Dale and Alice Springs youth detention centres.

The commission’s findings demonstrate the need for systemic change. However, the commission will not, in itself, bring about that change. Its capacity to make lasting change lies with the government implementing its recommendations.

What did the commission find?

The commission found that the NT youth detention centres were not fit for accommodating – let alone rehabilitating – children and young people.

It also found that detainees were subjected to regular, repeated and distressing mistreatment. This included verbal abuse, racist remarks, physical abuse, and humiliation.

There was a further failure to follow procedures and requirements under youth justice legislation. Children were denied basic human needs, and the system failed to comply with basic human rights standards and safeguards, including the Convention on the Rights of the Child.

The commission also found that the NT child protection system has failed to provide appropriate and adequate support to some young people to assist them to avoid prison.

Importantly, the commission found that isolation “continues to be used inappropriately, punitively and inconsistently”. Children in the high security unit:

… continue to be confined in a wholly inappropriate, oppressive, prison-like environment … in confined spaces with minimal out of cell time and little to do for long periods of time.

What did the commission recommend?

Based on these findings, the commission recommended wide-ranging reforms to the youth justice and child protection systems.

Not surprisingly, a central focus of the recommendations relate to detention. They ranged from closing the Don Dale centre to significant restrictions on the use of force, strip-searching and isolation, and banning the use of tear gas, spit hoods, and restraint chairs.

There is a focus on greater accountability for the use of detention through extending the Commissioner for Children and Young People’s monitoring role. Recommendations also cover health care (including mental health and fetal alcohol spectrum disorder screening), education, training, and throughcare services for children exiting detention.

Among its suite of proposed reforms, the commission recommended developing a ten-year strategy to tackle child protection and prevention of harm to children, and establishing an NT-wide network of centres to provide community services to families.

Youth justice reforms include improving the operation of bail to reduce the unnecessary use of custodial remand; expanding diversionary programs in rural and remote locations; and operating new models of secure detention, based on principles of trauma-informed practice.

Adequate and ongoing training and education for police, lawyers, youth justice officers, out-of-home-care staff and judicial officers in child and adolescent development is also recommended.

The commission also emphasised the importance of developing partnerships with Indigenous organisations and communities in the child protection and youth justice systems. Several organisations in written submissions to the commission identified the importance of appropriately resourcing community-controlled, and locally developed and led, programs for Indigenous young people.

Increasing the age of criminal responsibility a good place to start

One of the commission’s most significant recommendations is to increase the minimum age of criminal responsibility to 12 years, and only allowing children under 14 to be sentenced to detention for serious offences.

If this recommendation were to be implemented it is likely to have far-reaching implications across Australia. Currently, the minimum age is ten years in all states and territories.

Of particular relevance to the commission is the adverse affect of a low minimum age of criminal responsibility on Indigenous children.

The majority of children under the age of 14 who come before Australian youth courts are Indigenous. In 2015-16, 67% of children placed in detention under the age of 14 were Indigenous. This concentration is even higher among those aged 12 or younger.

Nationally, 73% of children placed in detention and 74% of children placed on community-based supervision in 2015-16 were Indigenous.

Raising the minimum age of criminal responsibility opens the door to responding to children’s needs without relying on criminalisation, given its short- and long-term negative impacts.

It enables a conversation about the best responses to children who often – as the commission’s findings acknowledged – have a range of issues. These can include trauma, mental health disorders and disability, coming from highly disadvantaged backgrounds, having spent time in out-of-home care, and – particularly among Indigenous children – being removed from their families and communities.

The ConversationA positive outcome from the commission will require political will and leadership to respond effectively to broader systemic issues. Raising the minimum age of criminal responsibility is a good place to start.

Sophie Russell, Research Associate, UNSW and Chris Cunneen, Professor of Criminology, UNSW

This article was originally published on The Conversation. Read the original article.

Australia has kept disabled migrant children out for decades – it’s time we gave them protection instead


Ruth Balint, UNSW

Assistant Immigration Minister Alex Hawke recently intervened to allow a 16-year-old girl with autism spectrum disorder, who had been ordered to leave Australia, to stay in the country. The Conversation

Sumaya Bhuiyan had been living in Australia for eight years, but was rejected for permanent residency in 2013. Her mother, a practising doctor in Sydney, told newspapers the immigration department had found Sumaya’s “moderate developmental delay” would be a burden to taxpayers.

Hawke’s personal intervention followed media coverage of the situation and a change.org petition that received nearly 38,000 signatures.

This isn’t the first time a minister intervened to prevent deportation of a family who have a dependent with a disability. In 2015, a Bangladeshi couple – also two doctors – with an autistic son had their application to stay in Australia approved.

For two years the Banik family exhausted all other avenues against the rejection of their autistic son for permanent residency. Their only recourse was to appeal directly to the immigration minister to intervene on compassionate grounds. After a widespread public appeal, Peter Dutton decided to let them stay.

Australia’s immigration laws require migrants to be screened for medical conditions. This is to prove they will not be a “burden” on the community, specifically its health services. Children are most affected by this policy, as costs are calculated over a lifetime.


Australia is causing significant mental harm to children in detention.

For someone found to be “burdensome”, the outcome isn’t always as positive as for Sumaya and the Baniks. A dozen or so families or their disabled members are deported from Australia every year.

Australian policies

Democracies have a long history of excluding people deemed undesirable as migrants. Those considered to have mental or physical disabilities are targeted most forcefully.

Australia has done little to ameliorate restrictions on disability in immigration policy. This is despite a 2010 parliamentary inquiry into the issue that recommended several changes to loosen them.

The chair of the Joint Standing Committee on Migration said at the time:

Australia needs a modern migration health assessment, with scope to positively recognise individual or overall family contributions to Australia and that takes into consideration development of contemporary medicine and social attitudes.

The Migration Act was amended in 1958 to remove restrictions based on race. But the health clause excluding people with disabilities remained. Despite ratifying the UN Convention on the Rights of Persons with Disabilities, the government ensured the Migration Act remained exempt from its own 1992 Disability Discrimination Act.

This means immigration is effectively quarantined from these national and international human rights instruments. The result is often that all able-bodied family members will receive permission to migrate to Australia, or gain permission to stay if they are already here, while a disabled child is refused. Families are either broken up or forced to leave.

The public has little awareness of this issue, due in part to the secrecy surrounding the formulation of migration criteria and policy.

The truly tragic dimensions of the issue were exposed most forcefully in the case of Sharaz Kiane in 2001. Kiane set himself on fire outside Parliament House in Canberra in protest of the government refusing him a visa. This seems to have been based on the fact his 10-year-old daughter had disabilities that required expensive medical treatment.

Kiane died of his injuries. An Ombudsman’s report described the history of Kiane’s case as “one of administrative ineptitude and of broken promises”.

A history of exclusion

My research has explored stories of families who gave up their disabled children in the period after the second world war. They often did this under duress to forge new lives in countries like Australia, the US and Canada.

They were known as Displaced Persons, mainly of eastern European origin. Most had survived Nazi concentration camps and forced labour schemes. Displaced Persons’ migration to the few western countries available for resettlement was complicated by the requirements of various migration schemes.

Displaced Persons’ migration to the few western countries available for resettlement was complicated by the requirements of various migration schemes.
Wikimedia Commons

These were largely created to satisfy the labour demands of postwar economies. Physical fitness for manual work was the most important factor in assessing potential migrants for countries like Australia and Canada. Single, able-bodied men were therefore most desirable.

In family units, dependants were not allowed to outnumber breadwinners. Despite the proclaimed motives of rescue and humanitarianism towards Nazism’s victims, western migrant selection missions carefully checked each displaced person for traces of physical or mental damage. They excluded anyone who didn’t meet the strict requirements.

Many survivors of concentration camps and Nazi forced labour were rejected, as were the elderly and handicapped. A mass check of more than 100,000 displaced persons in 1948, for example, revealed half of them were still suffering from the effects of malnutrition and hardship.

Children who were disabled were also categorically rejected, often forcing parents with other children to make drastic decisions. Moral pressure by allied welfare workers to institutionalise disabled children contributed to children being left behind in Europe by families who emigrated.

The break-up of families is a relatively well-known consequence of Nazi Germany’s policies of forced labour, population transfers and liquidations. There has been far less recognition of the ways western governments furthered these separations through immigration policies that ignored postwar humanitarian ideals.

What now for Australia?

An irony is while Australia is actively excluding those classified as a burden because of their disability, it is disabling people by its policy of offshore detention.

As has been widely documented, children detained in Australia’s remote offshore detention centres suffer from sexual and physical assault. Some have self–harmed or threatened suicide.

Research also shows that children who spend time in immigration detention are often plagued by nightmares, anxiety, depression and poor concentration. They may suffer from post traumatic stress disorder for many years after the experience.

The protection of children is often hailed as the strongest evidence of a civilised society. This claim cannot, at present, be held by Australia if its most vulnerable members – children who are refugees and who might require first-world care because they are disabled – are being actively discriminated against in the name of an impoverished calculus of burden, cost and contribution.

Ruth Balint, Senior Lecturer in History, UNSW

This article was originally published on The Conversation. Read the original article.