Legal highs: arguments for and against legalising cannabis in Australia



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Many of the harms associated with cannabis use are to do with its illegality.
from http://www.shutterstock.com

Nicole Lee, Curtin University and Jarryd Bartle, RMIT University

Greens leader Richard Di Natale wants Australia to legalise cannabis for personal use, regulated by a federal agency. This proposal is for legalisation of recreational use for relaxation and pleasure, not to treat a medical condition (which is already legal in Australia for some conditions).

According to the proposal, the government agency would licence, monitor and regulate production and sale, and regularly review the regulations. The agency would be the sole wholesaler, buying from producers and selling to retailers it licences.

The proposed policy includes some safeguards that reflect lessons we’ve learned from alcohol and tobacco. These include a ban on advertising, age restrictions, requiring plain packaging, and strict licensing controls. Under the proposal, tax revenues would be used to improve funding to the prevention and treatment sector, which is underfunded compared to law enforcement.




Read more:
Greens want cannabis to be made legal


Cannabis legislation around the world

In Australia, cannabis possession and use is currently illegal. But in several states and territories (South Australia, ACT and Northern Territory) a small amount for personal use is decriminalised. That means it’s illegal, but not a criminal offence. In all others it’s subject to discretionary or mandatory diversion usually by police (referred to as “depenalisation”).

Several jurisdictions around the world have now legalised cannabis, including Uruguay, Catalonia and nine states in the United States. Canada is well underway to legalising cannabis, with legislation expected some time this year, and the New Zealand prime minister has flagged a referendum on the issue.

In a recent opinion poll, around 30% of Australians thought cannabis should be legal. Teenagers 14-17 years old were least likely to support legalistaion (21% of that age group) and 18-24 year olds were most likely to support it (36% of that age group).




Read more:
Australia’s recreational drug policies aren’t working, so what are the options for reform?


In the latest National Drug Strategy Household Survey, around a quarter of respondents supported cannabis legalisation and around 15% approved of regular use by adults for non-medical purposes.

What are the concerns about legalisation?

Opponents of legalisation are concerned it will increase use, increase crime, increase risk of car accidents, and reduce public health – including mental health. Many are concerned cannabis is a “gateway” drug.

The “gateway drug” hypothesis was discounted decades ago. Although cannabis usually comes before other illegal drug use, the majority of people who use cannabis do not go on to use other drugs. In addition, alcohol and tobacco usually precede cannabis use, which if the theory were correct would make those drugs the “gateway”.




Read more:
Could a regulated cannabis market help curb Australia’s drinking problem?


There is also no evidence legalisation increases use. But, studies have shown a number of health risks, including:

  • around 10% of adults and one in six teens who use regularly will become dependent

  • regular cannabis use doubles the risk of psychotic symptoms and schizophrenia

  • teen cannabis use is associated with poorer school outcomes but causation has not been established

  • driving under the influence of cannabis doubles the risk of a car crash

  • smoking while pregnant affects a baby’s birth weight.

What are the arguments for legalisation?

Reducing harms

Australia’s official drug strategy is based on a platform of harm minimisation, including supply reduction, demand reduction (prevention and treatment) and harm reduction. Arguably, policies should therefore have a net reduction in harm.

But some of the major harms from using illicit drugs are precisely because they are illegal. A significant harm is having a criminal record for possessing drugs that are for personal use. This can negatively impact a person’s future, including careers and travel. Decriminalisation of cannabis would also reduce these harms without requiring full legalisation.

Reducing crime and social costs

A large proportion of the work of the justice system (police, courts and prisons) is spent on drug-related offences. Yet, as Mick Palmer, former AFP Commissioner, notes “drug law enforcement has had little impact on the Australian drug market”.

Decriminalisation may reduce the burden on the justice system, but probably not as much as full legalisation because police and court resources would still be used for cautioning, issuing fines, or diversion to education or treatment. Decriminalisation and legalistaion both potentially reduce the involvement of the justice system and also of the black market growing and selling of cannabis.




Read more:
Assessing the costs and benefits of legalising cannabis


Raising tax revenue

Economic analysis of the impact of cannabis legalisation calculate the net social benefit of legalisation at A$727.5 million per year. This is significantly higher than the status quo at around A$295 million (for example from fines generating revenue, as well as perceived benefits of criminalisation deterring use). The Parliamentary Budget Office estimates tax revenue from cannabis legalisation at around A$259 million.

Civil liberties

Many see cannabis prohibition as an infringement on civil rights, citing the limited harms associated with cannabis use. This includes the relatively low rate of dependence and very low likelihood of overdosing on cannabis, as well as the low risk of harms to people using or others.

Many activities that are legal are potentially harmful: driving a car, drinking alcohol, bungee jumping. Rather than making them illegal, there are guidelines, laws and education to make them safer that creates a balance between civil liberties and safety.

What has happened in places where cannabis is legal?

Legalisation of cannabis is relatively recent in most jurisdictions so the long-term benefits or problems of legalisation are not yet known.

But one study found little effect of legalisation on drug use or other outcomes, providing support for neither opponents nor advocates of legalisation. Other studies have shown no increase in use, even among teens.

The ConversationThe research to date suggests there is no significant increase (or decrease) in use or other outcomes where cannabis legalisation has occurred. It’s possible the harm may shift, for example from legal harms to other types of harms. We don’t have data to support or dispel that possibility.

Nicole Lee, Professor at the National Drug Research Institute, Curtin University and Jarryd Bartle, Sessional Lecturer in Criminal Law, RMIT University

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

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Despite a reduction in executions, progress towards the abolition of the death penalty is slow



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At the moment, at least 21,919 people are known to be facing death sentences around the world.
Shutterstock

Amy Maguire, University of Newcastle

Amnesty International has released its latest figures on the use of capital punishment globally. In 2017, at least 993 executions were carried out in 23 countries. At least 2,591 death sentences were issued across 53 countries.

At the moment, at least 21,919 people are known to be facing death sentences around the world.

In some ways, bizarrely, these figures are a source of hope. Fewer executions were carried out and fewer death sentences passed in 2017 than in 2016. The year saw a reduction in the number of executions in cases of drug crime.

According to Amnesty, these developments:

…confirmed that the world has passed a tipping point and that the abolition of the ultimate cruel, inhuman and degrading punishment is within reach.

Why should the world move towards death penalty abolition?

From a human rights perspective, capital punishment is indefensible. It violates the right to life. It constitutes a cruel and inhuman punishment.

Capital punishment can also be regarded as torture, both in terms of the methods used and the years that many prisoners spend waiting on death row. Torture is prohibited under international law.




Read more:
Australia’s Human Rights Council election comes with a challenge to improve its domestic record


There is no remedy for execution if a person is later exonerated. Innocent people have been executed in the past and efforts continue to free wrongly convicted people from death row.

On a more pragmatic level, capital punishment lacks deterrent value. It is also a costly punishment to impose, at least in justice systems that seek to meet the requirements of a fair trial and the right to appeal.

As Amnesty reports, the countries that imposed capital punishment in 2017 represent a shrinking minority – 23 of 193 UN member states. Yet Amnesty’s report reveals some worrying truths, and demonstrates how far the world still has to go before the death penalty is abolished.

Gaps in the data

Some countries, most notably China, treat death penalty data as a state secret. For this reason, Amnesty International has not published estimated figures for the death penalty in China since 2009.

Yet it is reported that China executes more people annually than all the other retentionist countries worldwide. Amnesty International is confident that thousands of executions are carried out in China each year.

The Cornell Center on the Death Penalty Worldwide aims to provide comprehensive data on the global application of capital punishment, including for countries like China that do not release figures on executions.

Although the Cornell Centre also refrains from estimating figures for China, it concurs that China executes thousands of people each year, and issues thousands more death sentences. Unlike those retentionist countries that permit many levels of post-sentencing appeal, in China people are typically executed immediately after sentencing, or within two years.

Inconsistencies in application of capital punishment

Almost all executions carried out in 2017 were imposed in just five countries: China (estimated thousands), Iran (507+), Saudi Arabia (146), Iraq (125+) and Pakistan (60+). In each of these countries, there are peculiar aspects of the practice that highlight the challenges of promoting abolition where the death penalty is entrenched.

Amnesty reports that executions were carried out in China, Iran, Iraq and Saudi Arabia in cases where confessions were extracted through torture.

In China, while it is not common practice, some death sentences continue to be delivered in public. In Iran, public executions were carried out in at least 31 cases.

Both Iran and Saudi Arabia impose mandatory death sentences for some crimes, execute juveniles, and fail to meet minimum fair trial standards.

Several retentionist states impose the death penalty in cases that do not meet the “most serious crimes” threshold under international law. For example, some “capital” crimes in China, including bribery and embezzlement, would not attract the death penalty in other retentionist states.

In Iran and Pakistan, blasphemy and insult to the prophet of Islam are punishable by death. In Saudi Arabia, adultery can attract a death sentence. Iraqi law permits capital punishment for kidnapping.

Amnesty also raises concerns regarding aspects of the practice in countries such as the United States and Japan, both of which continue to execute people with mental illness and intellectual disability.

Drug crime and capital punishment

Of ongoing concern is the use of the death penalty in drug cases. Fifteen countries implemented or imposed capital punishment for drug crimes in 2017. Iran executed more than 200 people convicted of drug offences.

Australia took a strong public stand against the death penalty for drug offences when it sought clemency for “Bali Nine” members Andrew Chan and Myuran Sukumaran. Yet the pair were executed in April 2015, and Indonesia continued with drug-related executions in 2016.

Although fewer executions were imposed for drug crimes in 2017, extrajudicial killings have been commonplace in the Philippines’ “War on Drugs”. Under President Duterte’s inhumane anti-drug strategy, more than 12,000 Filipinos have been killed to date.

Harm Reduction International raises the concern that Duterte’s regime could be normalising the killing of people for drugs. Such a development could encourage the retention of the death penalty in drug cases in the Asia-Pacific region.

Australia’s advocacy for death penalty abolition

In the aftermath of Chan and Sukumaran’s executions, the Australian government was galvanised to review its advocacy for the abolition of capital punishment.

The subsequent parliamentary inquiry delivered 13 recommendations to enhance Australia’s advocacy, several of which I have discussed previously.

The government delivered its response to these recommendations in March 2017 (10 months after the inquiry report was published). Several recommendations were accepted or accepted “in principle”, with the government noting new or pre-existing efforts to undertake actions recommended by the committee.




Read more:
As Indonesia conducts more executions, Australia’s anti-death-penalty advocacy is still lacking


However, the government did not accept the recommendation to amend Australian Federal Police (AFP) guidelines in ways designed to prevent future Bali Nine-type situations. It explicitly rejected the recommendation that the AFP refuse to share information with foreign law enforcement partners in relation to drug crimes, in the absence of guarantees that capital punishment would not be sought or imposed.

Australia has since been elected to the UN Human Rights Council for a three-year term. One of its voluntary pledges to the council was to continue strong advocacy for global abolition of capital punishment.

The ConversationIn order to meet this pledge, Australia could helpfully re-engage with the recommendations of the parliamentary inquiry. Australia can, and should, do more to contribute to the ongoing effort to achieve global abolition of capital punishment.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle

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

Why family violence leave should be paid


Kate Farhall, RMIT University

Five days unpaid family violence leave is a significant improvement over no guaranteed leave at all. But research shows that finances and domestic violence are inextricably linked.

Access to a steady income can mitigate the effects of violence and provide avenues out of abuse. Paid family violence leave is one tool to achieve this.




Read more:
Infographic: A snapshot of domestic violence in Australia


Research shows leaving an abusive relationship can be costly. This includes the cost of relocation (such as breaking a lease or finding alternative housing), medical and counselling bills, increased transportation costs due to moving house or loss of access to a car, as well as lost earnings – among other financial burdens.

The Australian Council of Trade Unions places the total figure at around A$18,000.

Given this, financial hardship can bind women to abusive relationships. As such, the economic backing that ongoing employment supplies can be a critical factor in supporting women to leave abusive relationships. Continued employment can also serve to psychologically bolster victims.

The impact of violence on earnings and employment

Family violence can significantly impact lifetime earnings. This has flow-on effects for victims’ ability to live safe and healthy lives.

In Australia, approximately two-thirds of women experiencing domestic violence are in paid employment.

Research shows a significant correlation between the experience of domestic violence and reduced lifetime earnings. Some studies in the United States show a 25% loss in income associated with abuse.

Victims of domestic violence also experience higher rates of part-time and casual work, lower retirement savings and a lack of job stability. Many lose their jobs as a direct result of violence.

The effects of violence are not only felt while the abuse is ongoing, but can reverberate for at least afurther three years after the violence has stopped.

This also has substantial consequences for career progression and therefore potential future earnings.




Read more:
Paid domestic violence leave: how do other countries do it?


Victims of domestic violence are also more likely to experience food insecurity, to struggle to find affordable housing and cover the basic essentials like utility bills.

Domestic violence victims are also more likely to experience anxiety over their ability to support their children, even as compared to others on a low income. In fact, all of this is intensified for low-income women.

As Adrienne Adams and her colleagues explain, “whether it is a few hours out of a day, a few days out of a week, or a few months out of the year, missed employment opportunities translate into lost income”.

Providing paid family violence leave means we’re not asking victims to choose between forgoing necessary support for the sake of financial security.

It also means that victims may be better able to weather the storm of domestic and family violence and may be more productive at work (although more research is required to assess this).

Providing family violence leave – and ensuring that it is paid – is a fundamental aspect of workplace support for victims.

Research also shows a symbiotic relationship between financial stress and rates of domestic violence. What people think about their own economic insecurity is closely associated with higher rates of domestic violence, according to one comprehensive study in the United States.

By failing to provide family violence leave we risk re-entrenching existing forms of disadvantage and failing to address a potential contributing factor to the persistent gender pay gap in this country.




Read more:
Out of the shadows: the rise of domestic violence in Australia


Paid domestic and family violence leave only represents one aspect of a comprehensive response that workplaces can provide, yet it is a substantial one.

The ConversationThe argument that paid domestic violence leave will negatively impact employers fails to take into account actual patterns of usage, so the potential benefits seem to far outweigh the costs.

Kate Farhall, Postdoctoral research fellow, RMIT University

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

Is counter-attack justified against a state-sponsored cyber attack? It’s a legal grey area



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The US has charged and sanctioned nine Iranians and an Iranian company for cyber attacks.
Parmida Rahimi/Flickr, CC BY-SA

Sandeep Gopalan, Deakin University

On March 23, the US Department of Justice commenced perhaps the largest prosecution of a state-sponsored cyber attack. It indicted nine Iranians for carrying out:

a coordinated campaign of cyber intrusions into computer systems belonging to 144 US universities, 176 universities across 21 foreign countries, 47 domestic and foreign private sector companies … [and] the United Nations…

At least 31.5 terabytes of data was allegedly stolen and Australian universities were targeted, although specific institutions are not named.

History suggests that this response is unlikely to deter future attacks, and that counter-attacks are a more effective strategy. But would it be justified? Current international law focuses on armed attack, not cyber attack as a justification for state action taken in self-defence.

As cyber attacks become more common, international law needs to clear up this grey area.

How they did it and what was taken

The indictment alleges that defendants Gholamreza Rafatnejad and Ehsan Mohammadi are founders of Mabna Institute – an organisation established for the purpose of scientific espionage. Mabna is alleged to have contracted with Iranian governmental agencies (including the Islamic Revolutionary guard) to conduct hacking on their behalf.




Read more:
Following the developing Iranian cyberthreat


The defendants allegedly engaged in a conspiracy to compromise computer accounts of thousands of professors to steal research data and intellectual property, costing the US approximately US$3.4 billion. They allegedly conducted surveillance and sent professors targeted “spearphishing” emails to lure them into providing access to their computer systems.

Valuable data was transferred from the compromised IT systems to the hackers, according the the indictment. Over 100,000 professors were apparently targeted and approximately 8,000 email accounts compromised.

Private companies were also targeted – none Australian – via “password spraying”, said the US Department of Justice. This is a technique whereby the attacker identifies the email accounts of a target via public search and gains access to the account using common or default passwords.

Prosecution is an insufficient response

The defendants are charged with committing fraud and related activity in connection with computers, conspiracy, wire fraud, unauthorised access of a computer, and identity theft. Each charge carries a prison sentence ranging from two years to 20 years.

The prosecution is a necessary, but insufficient response to these cyber attacks.

The defendants are based in Iran and are unlikely to be brought to justice. Previously, US prosecutors have charged Iranian hackers with attacks against financial institutions and a dam in New York to no avail.

And hacking has escalated – the US accused Russia of compromising the US electricity grid and attacks against other countries are also alleged.

Counter-attack a better deterrent

Rogue states such as Iran, Russia, and North Korea are only likely to be deterred against conducting cyber attacks if their targets have robust self-defense and counter-attack capabilities. However, the legal status of cyber attacks and the appropriate responses are not clear in international law.

Under the UN Charter, states have an obligation to refrain “from the threat or use of force against the territorial integrity or political independence of any state”. Crucially, states possess an “inherent right of individual or collective self-defence if an armed attack occurs”.




Read more:
Cybersecurity of the power grid: A growing challenge


The key questions then are whether a cyber attack amounts to a “use of force”, whether hacking attributable to a state amounts to an “armed attack”, and if a cyber attack violates “territorial integrity”. Traditionally, international law has answered these questions with reference to acts of physical violence – conventional military strikes.

It’s likely that a large scale cyber attack against a state that has physical consequences within its territory may be characterised as a “use of force”, and may violate “territorial integrity” under the charter. For instance, attacks that turn self-driving cars into weapons, knock out nuclear stations or paralyse the power grid might reach this threshold.

But what if the attack is designed to sow confusion or generate internal discord, such as in the case of Russian hacking of the US election? Or attacks directed beyond a particular country? This is a harder question and not settled currently. Similarly, it’s not certain that even large scale hacking would rise to the level of an “armed attack”.

Precedent in international law

In 1984, Nicaragua brought proceedings against the US in response to American support for the Contras (rebels fighting the government). In that case, the International Court of Justice (ICJ) opined that armed attack might also include:

the sending by a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces.

Crucially, the ICJ underlined the principle of non-intervention:

Intervention is wrongful … [using] methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State.

Based on the Nicaragua case, if a cyber attack has sufficient “scale and effects” it may amount to an armed attack. More importantly, if the attacks are attributable to a state (in this case the Islamic Revolutionary Guard) – or are within its overall or effective control or direction – it would appear that the armed attack would give rise to the right to self-defence.




Read more:
Cyber peacekeeping is integral in an era of cyberwar – here’s why


However, this may be difficult to establish in practice – there may not be sufficient evidence connecting the hacker to the state to show control, and hence attribution.

So, what are the permissible self-defence responses under international law? Could the US launch military strikes against Iran or Russia for these incidents if they are found to be behind these attacks? The legality of such strikes is not clear even though the US might claim such status.

The ConversationThe international community should set bright line rules on this matter before an expansive reading of self-defence triggers war. The NATO Cooperative Cyber Defence Centre of Excellence’s Tallinn Manual 2.0 is a start, but a binding instrument is needed. John Bolton’s appointment as US President Donald Trump’s National Security Advisor makes this an urgent priority because a military strike in response to the next major cyber attack is a realistic prospect.

Sandeep Gopalan, Pro Vice-Chancellor (Academic Innovation) & Professor of Law, Deakin University

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

Living through the horrors of genocide: humanitarian workers in Rwanda



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The genocide memorial in Kigali. Humanitarian workers in Rwanda had to deal daily with the horrors of war.
Trocaire/Flickr, CC BY-ND

Marc Le Pape, École des hautes études en sciences sociales (EHESS) and Jean-Hervé Bradol, Fondation Maison des Sciences de l’Homme (FMSH) – USPC

They are on the frontlines of any major conflict or disaster – but how much is known about the daily experiences of humanitarian workers in these extreme situations? In their new book, Génocide et crimes de masse. L’expérience rwandaise de MSF (“Humanitarian Aid, Genocide and Mass Killings: Médecins sans frontières, the Rwandan experience, 1982-97”), Marc Le Pape and Jean-Hervé Bradol set out to answer some of these questions. The book is also informed by Bradol’s experience of working for Médecins Sans Frontières in Rwanda during the genocide. Here, they discuss their findings.


You investigated humanitarian operations in the Great Lakes region between 1990 and 1997. This was a period of extreme violence against Rwandophone populations. You specifically looked at the records of Doctors Without Borders in Paris. What did you hope to learn?

Marc Le Pape: The actual day-to-day work of humanitarian teams in situations of extreme violence is generally little known and understood. That’s why our investigations focussed on messages from the field, while most studies are far more concerned about getting the macro-political or macro-humanitarian picture. Taking a “micro” perspective meant we could observe the long-term evolution of operations: how, and with whom, did teams need to negotiate to launch and maintain operations?

So we looked at how these teams got information and communicated with political and military authorities, various local authorities, UN agencies in the Great Lakes region, local and international NGOs, religious leaders and people at emergency sites, in medical facilities and camps.

We also looked at the relationship between the field of operations, national capitals and the various Doctors Without Borders head offices. We tracked field accounts transmitted up the chain of command, how the organisation’s head offices reacted to the stories of violence, intimidation and prohibitions, and the way these were then framed and talked about publicly.

For example we examined all the documents, from internal alerts to public statements, demonstrating the gradual realisation of humanitarian workers in Rwanda in 1994 that they were witnessing the systematic, organised extermination of the Tutsi people.

Did humanitarian workers witness extreme violence?

Jean‑Hervé Bradol: It’s shocking to see, from 1994 onwards, the extent to which humanitarian workers became regular eyewitnesses to violence, murder and large-scale massacres. It is generally rare for humanitarian workers to witness these kinds of events. They typically work at a distance from mass killing sites and the perpetrators remain largely anonymous. This was not the case in Rwanda.

The situation in April 1994 was extreme and basically unprecedented, at least for Doctors Without Borders. Humanitarian workers where present when the decision was made as to who would die and who would be spared. Some Rwandan staff members were among the victims. Others were complicit, or even participated in these crimes.

Can you give a few examples of the violent situations Doctors Without Borders workers witnessed and what kind of lessons were learned – or not?

Jean‑Hervé Bradol: In April 1994 I was working in Kigali. In the first few days following the assassination of former president Juvénal Habyarimana, we braced ourselves for a massive eruption of violence. We thought there would be reprisals against the Tutsi, but never imagined that the order would be to “kill them all”.

Our team quickly realised that, at least in Kigali, the extermination of the Tutsi did not arise from chaos; instead, it was organised. Others also rapidly grasped the situation, in particular the head of the International Committee of the Red Cross delegation. It was awful. We knew the army was providing arms to the militia groups manning the road blocks. This made it extremely dangerous to evacuate wounded Tutsi adults to the Red Cross hospital: when they were caught, they were executed.

Later, Doctors Without Borders workers also witnessed first-hand the horror of the prisons in Rwanda. Between September 1994 and May 1995, they worked in Gitarama, where 3,000 prisoners were incarcerated in a complex built for 400 detainees. Some 800 prisoners died during this period. These people were arrested based solely on hearsay. We were their doctors, so we could not escape the realities of the new regime’s policy and the crimes committed by the former rebels.

Among other shocking crimes committed by the new authorities was the Kibeho massacre in April 1995. The new Rwandan (formerly rebel) army killed several thousand people in an internally displaced persons refugee camp in front of a Doctors Without Borders medical team. People convinced themselves that one mass crime, the Tutsi genocide, could hide other mass crimes committed by the new government.

As a sociologist, did you learn things that you had not realised were important to aid NGOs?

Marc Le Pape: I learnt the extraordinary importance of counting populations: the numbers of people in camps and on the run, of victims and of people being treated.

Conducting frequent counts is of course crucial for humanitarian organisations, especially when they need to know how many supplies to bring to the field. In the case of emergency NGOs, counts are also politically important to back up first-hand accounts, ensure that the murders they have witnessed are documented, and oppose competing statements that claim to be based on figures.


The ConversationThis interview is published as part of the work of the “Violence and exiting violence” platform (Foundation Maison des sciences de l’homme), of which The Conversation France is a partner. It was translated from the French by Alice Heathwood for Fast for Word.

Marc Le Pape, sociologue (Institut des mondes africains), École des hautes études en sciences sociales (EHESS) and Jean-Hervé Bradol, Médecin, Fondation Maison des Sciences de l’Homme (FMSH) – USPC

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

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



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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 Burke story reveals the pernicious culture of men protecting each other in the media


Gael Jennings, University of Melbourne

It was such a cliché. At the office Christmas party of the national TV show where I worked, I emerged from the loo out the back to find one of my bosses straddling the doorway, blocking my way and waiting to pounce.

I was shocked, not so much by his sexual harassment (that was de rigueur in the newsroom cultures of the day, the 1990s), as by the extent of his male entitlement and misogyny. At the time I was still breastfeeding my baby daughter, who was next door at the party with her dad and my colleagues.

This week’s revelations that TV’s darling of nearly 20 years, Don Burke of Burke’s Backyard fame, was allegedly a “psychotic bully”, a “misogynist” and a “sexual predator” who indecently assaulted, sexually harassed and bullied a string of female employees comes as no surprise to women in Australian media. According to last year’s Women in Media Report, nearly half of us have been abused, intimidated or harassed in our working lives.

Once sexual assault allegations against Hollywood boss Harvey Weinstein exploded in the media, the open secret of male abuse of power over women was out. Social media was awash with #Metoo; in France, #BalanceTonPorc (“expose your pig”) flooded Twitter with stories of sexual harassment and assault.

New allegations appeared almost every day against other powerful men in various industries, including head of Amazon Studios Roy Price, political journalist Mark Halperin, editor at NPR Michael Oreske, Hollywood screenwriter and director James Toback, actors Ben Affleck and Kevin Spacey, comedian Louis CK, reinforcing the seeming incongruity of a self-described grabber of pussies, Donald Trump, being elected US president.

Donald Trump’s ‘Grab her by the pussy’ comments caught in this leaked recording.

A rising swell

It feels like a rising swell, a great wave of truth-telling gathering force and breadth, the crest white and flickering, teetering at the top, ready to curl and roar down upon us all, washing away thousands of years of male power and privilege. But is it?

Or will it peak, then withdraw and ebb away, diluted back into the ocean of sexist norms dominating the world and responsible for the perpetuation of sexual violence against women?

Some journalists are hopeful, because at last, in the Burke case, even some blokes have broken ranks and ratted on him.

Journalist Juanita Phillips is optimistic that “two industry veterans – David Leckie and Sam Chisholm – went on the record to condemn Burke in no uncertain terms. He was a disgrace, they said. A horrible, horrible man”. She found it significant that industry executives – the very keepers of the gates of male privilege – spoke out against one of their own.


Read more: Behind media silence on domestic violence are blokey newsrooms


It’s true the endemic abuse of women in media and entertainment has been enabled over all these years by the collusion of the men in charge. Until now, executive men have largely closed ranks and protected the perpetrators of abuse, harassment and assault against women colleagues.

This is not only because, like Burke, some harassers were cash cows for the companies and networks involved. It was also, and I believe mainly, because these perpetrators were part of the club; part of the same culture that saw the executives themselves rise to the top and stay there.

They not only had a vested interest in maintaining the cultural norm, it was their norm.

Peer-reviewed global literature clearly proves that men perpetrate violence against women when there is masculine dominance in society, when they identify with traditional masculinity and male privilege, believe in rigid gender roles, have weak support for gender equality, and hold negative attitudes towards women.

Our research at the Centre for Advancing Journalism at the University of Melbourne and that of Women in Media indicates these norms are rampant in the media industry. Men almost exclusively own, run, and give voice to the industry. Murdoch’s News Corp, Fairfax, and APN own 92% of print media in Australia, with women owners being only 15%.

Men run nearly all of it, with only 17% of executives female, and new research shows women to be similarly underrepresented as editors (30.8%), specialist reporters (9.6%-30.2%), as experts (24.6%) and as authoritative sources (26.0%). Only 27% of AM and FM radio breakfast and drive programming hosts are female.

The rate of sexual harassment of women in media (48%) is more than twice that of other workplaces (22%), and far exceeds that of the rightly criticised rates in the Australian Defence Force, at 25% (according to the Human Rights Commission), and Victoria Police at 40%, yet has not been reported widely.

Up until now, the male-centric culture of media made it a non-story.

Will we see long overdue change?

Are we seeing a change now “The Blokes” have broken ranks with Don Burke? Is public discourse about to change? Has social media enabled a coalescence of power from LGBT people and people of colour, to join with outpouring from women who’ve been bullied, excluded, harassed and assaulted, to reach a tipping point for the wave of change?

I think not yet.

I think The Blokes who sacked predatory men in the US did it because women, LGBT and people of colour now have economic power and will use it. I think The Blokes who turned on Burke did it to protect themselves.


Read more: From Public Confessions to Public Trials: The Complexities of the ‘Weinstein Effect’


They were there; they oversaw the reign of terror and did nothing; now that the women and their coworkers are testifying, the (Old) Blokes are running for their lives and distancing themselves from every aspect of this (now) “horrible, horrible man”. Their successors are perpetuating the same workplace cultural norms that we know lead to violence against women.

When a Trump becomes a Macron, we could be more confident. The French president this week swore “it is essential that shame changes camp”, and he is putting his money where his mouth is, with a 2018 draft law to criminalise street harassment, and a massive public education program about sexism and changes to police and courts to help victims.

In the meantime, as Lindy West of the New York Times writes:

… not only are women expected to weather sexual violence, intimate partner violence, workplace discrimination, institutional subordination, the expectation of free domestic labour, the blame for our own victimisation, and all the subtler, invisible cuts that undermine us daily, we are not even allowed to be angry about it.

We women are angry. Our anger has led to finding ways, around the rule of men in the newsroom, through social media and each other, to document the scope of the crimes against us.

The ConversationThe question is whether our anger, and collaboration with powerful men, will be enough to turn that teetering crest into a massive, roaring wave of change.

Gael Jennings, Honorary Fellow, Centre for Advancing Journalism, University of Melbourne

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

No Don Burke, there is no link between autism and harassing behaviour


Andrew Whitehouse, University of Western Australia

Allegations that Don Burke indecently assaulted and bullied staff during his time hosting Burke’s Backyard were heinous enough. But in an interview with A Current Affair last night, he created another victim: the autism community.

In the interview, Burke claimed that he has Asperger’s syndrome:

I haven’t been medically diagnosed but I’ve worked it out, what it is, and it’s a terrible failing.

I have difficulty looking anyone in the eye. I can look in the lense, but I have real difficulty looking anyone in the eye … it’s a typical thing. And I miss all their body language and often the subtle signs that people give to you like, ‘Back off, that’s enough’, I don’t see that.

I suffer from a terrible problem with that, of not seeing … and no-one can understand how you can’t see it. But you don’t.

In examining Burke’s comments, it’s helpful to separate “excuse” from “explanation”. It’s clear there is no excuse for humiliation, bullying and harassment. Nevertheless, reasonable explanations can still underlie inexcusable behaviour.

Burke sought to use Asperger’s syndrome as that explanation. Whether or not Burke would meet criteria for Asperger’s syndrome is not the issue. The problem is that the statements he made about Asperger’s syndrome are utterly false and have an impact far beyond his own circumstance.

Remind me, what is Asperger’s syndrome?

Asperger’s syndrome is part of the autism spectrum, and is characterised by difficulties with social interaction and communication.

Autism spectrum conditions are diagnosed by a team of clinical experts, often including a specially trained medical doctor, a psychologist and a speech pathologist. While autism is a heritable condition (it “runs” in families), we currently don’t know enough about the genetic factors underlying the condition and so we diagnose based on observable behaviours.


Read more: The difficulties doctors face in diagnosing autism


A defining characteristic of autism (and Asperger’s syndrome) is differences in social behaviours, such as difficulties initiating or maintaining social interaction with others. However, these social difficulties bear no relevance to a lack of empathy for others, which, of course, underlies bullying and harassing behaviour.

Empathy comes in two forms – cognitive empathy (ability to recognise others’ emotions), and emotional empathy (ability to feel others’ emotions once that emotion has been recognised). There is strong research evidence that some individuals with autism may have challenges with cognitive empathy, but no evidence for difficulties with emotional empathy.

In essence, once there is understanding of what a person is feeling, people on the autism spectrum are often intensely empathetic.

More likely to be bullied than a bully

While the behaviours that characterise autism can create challenges in day-to-day life, there is no link between autism and the perpetration of bullying and harassment. Indeed, dozens of scientific studies have investigated this, and all evidence indicates that people on the autism spectrum are far more likely to be the victims of these behaviours than the other way around.


Read more: Why children with autism often fall victim to bullies


Burke’s statements create real and lasting damage. There is considerable research evidence showing the stigma that still surrounds autism, and the detrimental effects that stigma can have on people with the condition and their families.

I think about the young man with Asperger’s syndrome, who has fostered enormous courage to attend and enjoy school, and now has another target placed on his back.

I think about parents of newly diagnosed children, who are met with yet another jarring myth to swirl around their tired and worried minds. I think about how this may affect their view of the years that lie ahead of them. These years will come with great challenges, but also the greatest of joys.

I think about employers, who are just starting to understand the vast talents and economic benefits people on the autism spectrum bring to their workplace, and how even the smallest seeds of doubt can be fertilised by the public airing of patently false statements.


Read more: Why employing autistic people makes good business sense


I think about all of these people – the wonderful autism community – and how they would feel in being used as a punching bag yet again. The autism community frequently takes punches from media and public figures in an attempt to excuse or explain human behaviour.

The ConversationAustralia would do very well to not simply ignore Don Burke’s comments, but instead use the anger they generate to continue the path of cherishing and valuing the diversity that the autism community provides our society.

Andrew Whitehouse, Winthrop Professor, Telethon Kids Institute, University of Western Australia

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

Ratko Mladic, the ‘Butcher of Bosnia’, to spend life in prison for genocide and war crimes


Melanie O’Brien, The University of Queensland

The former commander of the Bosnian Serb army, Ratko Mladić, has been found guilty of war crimes, crimes against humanity and genocide, and sentenced to life in prison.

Mladić was convicted by the International Criminal Tribunal for the former Yugoslavia of crimes committed against Bosnian Muslims and Bosnian Croats in the former Yugoslavia during the 1990s. The tribunal declared that the crimes he committed were “among the most heinous known to humankind”.

Trials of former high-ranking war criminals are often peppered with drama, and this week’s verdict announcement was no exception. Disruption of trials is a way for previously powerful people – usually men – to reclaim some of their lost power.

Halfway through the verdict summary announcement, Mladić requested a break. After a lengthy break, the court was informed that Mladić had high blood pressure, but on medical advice, deemed it appropriate to continue. At this point, Mladić refused to sit and began shouting at the judges: “this is a lie” and “shame on you”.

He was thrown out of court, and watched the rest of the proceedings from another room. This unfortunately meant that victims were unable to see his reaction to the long-awaited verdict and sentencing.

Long road to justice

First indicted by the Tribunal in 1995, Mladić stayed in military resorts, protected even though a fugitive. He later went into hiding until his arrest in Serbia in 2011. Mladić’s trial began in 2012, concluded in 2016, with the verdict delivered on November 22.

Mladić, who came to be known as the “Butcher of Bosnia”, rose through the ranks to become the commander of the Bosnian Serb army in 1992, participating in atrocities committed under Serbian leader Slobodan Milošević’s regime. Milošević was also tried by the International Criminal Tribunal for the former Yugoslavia, but died before he could be convicted.


Read more: Bosnia’s 25-year struggle with transitional justice


Mladić played a leadership role in these atrocities, commanding the army as it committed crimes across the regime. He has been convicted of “Joint Criminal Enterprise” – the international equivalent of conspiracy – alongside other leaders such as Milošević and Bosnian Serb politician Radovan Karadžić. The tribunal found that Mladić was instrumental in the crimes and they would not have taken place without his involvement.

The atrocities included the siege of Sarajevo, which lasted for 44 months from 1992-95. Some 10,000 people died during the siege, including many children. Some of Mladić’s other crimes were committed at internment camps such as Omarska and Foča, where thousands were tortured and raped. He has also been held responsible for the kidnapping of UN peacekeepers in order to leverage NATO to stop air strikes.

Convicting the high-ranking Mladić is symbolic and momentous, as he was the commander of the soldiers who carried out these actions.

Perhaps most significant is the conviction for genocide over mass killings at Srebrenica in July 1995. Some 8,000 Bosnian Muslim men and boys were killed and buried in mass graves. Identification of remains is ongoing, with thousands of bones and personal belongings still being analysed in hope of a match for families that continue to seek the whereabouts of loved ones. Identification is hampered by the fact that two months after the killings, bodies were moved to alternative mass grave locations.

A welcome day for survivors

The many survivors have waited a long time justice, both for themselves and for their lost loved ones. Some victims travelled to The Hague to hear the verdict first hand.

It is particularly poignant, given that some of the war criminals convicted by the tribunal have already served their sentences and returned to Serbia and Bosnia, now living in communities with their victims. A life sentence for Mladić is a source of satisfaction to the victims; a minimum justice for their suffering and loss.

Legal consequences of this ruling are also substantial. Proving genocide in court is challenging for prosecutors, with the requirement of a “special intent” to eliminate part or whole of a specific population. Convictions for genocide are rare; only a handful of convicted perpetrators at the ICTY were found guilty of genocide, including Karadžić and Radislav Krstić, a deputy commander in the Bosnian Serb army.

The confirmation that the Srebrenica massacre was indeed a genocide is important, because many Bosnian Serbs continue to deny the fact. Victims hope the ruling will contribute to a broader acknowledgement, which in turn could help the reconciliation process.

Yet others have little hope that the ruling will change things. Srebrenica’s Serb mayor Mladen Grujičić still denies the genocide, and many Serbian nationalists still laud Mladić and his fellow war criminals as heroes.

Mladić was found not guilty of one count of genocide, in reference to a broader spate of killings throughout Bosnia. This is in keeping with previous decisions, where Srebrenica has been deemed genocide, but the overall objective of the leadership for the whole of the Yugoslav territory has not.


Read more: Ratko Mladić’s conviction and why the evidence of mass graves still matters


This verdict is the final judgement to be delivered by the International Criminal Tribunal for the former Yugoslavia, slated to close at the end of this year. Since it was established in 1993, the tribunal has indicted 161 individuals and convicted 84 perpetrators of war crimes, crimes against humanity, and genocide.

Some 4,650 witnesses have appeared, more than 1,000 of whom testified about the Srebrenica genocide. There are only seven proceedings remaining, with the UN Mechanism for International Criminal Tribunals finalising cases. The tribunal has undoubtedly contributed to justice and reconciliation in the former Yugoslavia.

However, success has not been absolute, with criticism that sentences have been too short. There is also inevitable post-atrocity denial of crimes committed by perpetrators and their communities, with continued rejection by Serbian communities and politicians of the validity and decisions of the Tribunal.

These 84 convictions are clearly only a small proportion of the thousands of perpetrators. With the wind-up of the tribunal, remaining perpetrators will continue to be tried at local war crimes courts in Bosnia.

Throughout Europe, 14 countries have housed convicted tribunal war criminals in their prisons. Mladić will serve his sentence in a country yet to be determined.

The ConversationWhile it may not bring their loved ones back, survivors can have some comfort in knowing the man who ordered and oversaw the atrocities will spend the rest of his life in prison.

Melanie O’Brien, Research fellow, The University of Queensland

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