Why Australia should face civil lawsuits over soldier misdeeds in Afghanistan


Tim Matthews, University of Sydney and John Eldridge, University of Sydney

For the past two years, Paul Brereton, a New South Wales Supreme Court judge and Army Reserve major general, has been conducting an investigation into the conduct of members of the SAS in Afghanistan. While the findings are not yet known, leaks from within the Australian Defence Force (ADF) have suggested that as many as five cases involving unlawful killings have been uncovered.

Much of the media commentary surrounding the allegations has centred on the potential criminal prosecution of these alleged offences. But a further legal issue can arise from investigations of this kind – the alleged victims (or their families) might bring civil claims against Australia’s armed forces, seeking compensation for their suffering.




Read more:
Explainer: how Australia’s military justice system works


Cases of this kind have occurred in other countries. In the United States, a number of high-profile habeas corpus petitions have been filed against the government by people who claim they were unlawfully detained by US armed forces on suspicion of being insurgents in Iraq and Afghanistan.

Claims for damages have also been successfully brought by former Iraqi detainees against private military contractors over their alleged torture at Abu Ghraib prison in Iraq.

British courts are also currently considering a number of civil suits arising out of British involvement in the conflicts in Iraq and Afghanistan.

One of those claimants, Yunus Rahmatullah, was arrested by British forces in Iraq in 2004 on suspicion of being a member of Lashkar-e-Taiba, a terrorist organisation with links to al-Qaeda. He was “rendered” by British forces to the custody of the US army in Afghanistan, where he was detained for over ten years without charge or trial and, he alleges, tortured.

Rahmatullah denies ever being a member of a terrorist organisation. He has made a well-publicised claim for compensation from the UK government, under the country’s Human Rights Act.

Why are civil claims against soldiers controversial?

We are all exposed to potential civil liability in our day-to-day lives. If we drive negligently and cause an accident, for instance, we may find ourselves liable to pay compensation to those we have harmed. The same is true of public institutions and authorities, such as hospitals and the police. Few would suggest this is unfair or unreasonable.




Read more:
Inconsistency bedevils Australia’s prosecution of war criminals


However, the extension of civil liability to the armed forces is controversial. Former Army officer Bill O’Chee, for instance, recently argued forcefully against such liability:

Service personnel who commit crimes are already subject to military criminal proceedings, and this is rightly so. However, exposing them to claims for personal injury claims would be perverse and entirely unjust.

The very idea that highly paid lawyers in comfortable courts in Australia can understand, let alone litigate these cases, is fanciful at best.

How absurd it would be for our servicemen and women to be subjected to damages claims in these circumstances, let alone be asked to find the money for legal costs and a possible damages order against them.

Should these civil claims be permitted?

Such civil liability claims have never been brought against individual ADF personnel in Australia before. This would be new legal territory. And nobody is seriously suggesting these soldiers should personally bear the burden of defending civil claims arising from the Afghanistan and Iraq wars. Rather, any potential claims are likely to be defended by the Commonwealth.

This is the way civil claims against police officers in Australia are typically resolved. In such cases, individual officers will often be required to give evidence as to their version of events. Yet the costs of defending the case, and the compensation (if any) paid to the plaintiff, are borne not by the individual officers, but by the relevant public authority.

Despite the controversy surrounding them, there are still good reasons to allow civil claims of this kind to proceed.




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Friday essay: war crimes and the many threats to cultural heritage


First, criminal and civil claims serve different purposes. A successful criminal prosecution may leave a victim with a feeling of vindication, but it typically does not result in monetary compensation. As a result, it may matter little to victims or their families if the soldiers responsible are professionally disciplined, since they may receive no compensation for their loss.

Secondly, the notion that civilian courts are not competent to adjudicate on military matters is seriously problematic.

Nobody could deny that military personnel are forced to carry out their duties in extremely difficult conditions. It is also true that many lawyers and judges have difficulty appreciating the fraught circumstances in which military decision-making occurs.

But the answer to these difficulties is not the abandonment of such claims altogether. Judges are often faced with the task of making difficult decisions about matters on which they are not experts. Civil justice would simply not work if courts threw up their hands whenever they were faced with such challenges.

Greater accountability for the military

Finally, if the Commonwealth were somehow able to avoid liability for potential civil damages in these types of cases, the ADF may have less incentive to conduct military operations in ways that safeguard the rights of civilians caught in conflict zones.

Given the limited accountability for military decision-making in the public sphere, the possibility of accountability in a civil court would promote stricter adherence to international conventions on war.

Many of the victims who may bring claims of this kind are unlikely to excite public sympathy. For example, one of the claimants in the UK cases, Serdar Mohammed, was arrested while leaving a ten-hour firefight with British troops, discarding a rocket-propelled grenade launcher and ammunition on his way.

The ConversationBut we shouldn’t allow our moral judgement of claimants like Mohammed to erode our commitment to the rule of law. Public authorities, and especially our armed forces, should be held accountable for their actions to the limits imposed by law.

Tim Matthews, Sessional Academic, Law School, University of Sydney and John Eldridge, Lecturer, Sydney Law School, University of Sydney

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

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Turnbull government to give national apology to victims of child sexual abuse


Michelle Grattan, University of Canberra

Malcolm Turnbull will give a formal national apology on October 22 to victims of child sexual abuse, as part of the federal response to the royal commission.

Outlining the government’s detailed response on Wednesday, the Prime Minister said that Western Australia had now agreed to sign on to the redress scheme so there will be a fully national scheme from July 1.

Victims will be entitled to up to A$150,000, with average payments of $76,000. The maximum is lower than the $200,000 recommended by the commission, but the average will be higher. There will be a low evidentiary standard.

The government will set up a new National Office for Child Safety within the Social Services department, which it says will “work across government and sectors to develop and implement policies and strategies to enhance children’s safety and prevent future harm”.

But Turnbull was unspecific when questioned at a news conference about how to deal with one current big issue of child safety – protecting at risk children in some Indigenous communities. There has been recent controversy about whether too many or too few children are being removed from families. The issue has been highlighted by some high profile alleged rapes.

Turnbull said he had discussed the problem with the Northern Territory chief minister.

Asked about the level of removal of children he said: “the safety of children has to be paramount. It’s difficult to generalise about this because every case is different.” He pointed to the duty of parents and neighbours to ensure children’s safety. “If you … believe a child is being abused, don’t turn a blind eye.”

The government has opened consultations on the content of the national apology and the form of the ceremony.

The commission made 409 recommendations. Of these 84 relate to redress matters. Of the remaining 325, 122 are directed wholly or partly to the federal government, which has accepted 104 of them. It has noted the other 18, which mostly overlap other jurisdictions and will need more consideration. It has not rejected any recommendation.

The government said in a statement it expected non-government institutions would indicate what action they would take on recommendations of the commission and report annually in December, along with all governments. The government will report its progress annually for five years with a comprehensive review after a decade.

“Where institutions decide not to accept the royal commission’s recommendations they should state so and why”.

Speaking at his news conference Turnbull said: “The survivors that I’ve met and the personal stories that have been told to me have given me but a small insight into the betrayal you experienced at the hands of the people and institutions who were supposed to protect and care for you.”

“Now that we’ve uncovered the shocking truth, we must do everything in our power to honour the bravery of the thousands of people who came forward.”

The Conversation“The royal commission has made very clear that we all have a role to play to keep our children safe – governments, schools, sporting clubs, churches, charitable institutions and, of course, all of us.”

Michelle Grattan, Professorial Fellow, University of Canberra

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

Grattan on Friday: Peter Dutton’s bid for more crime-fighting power has bought him a fight


Michelle Grattan, University of Canberra

No one should be surprised that the Home Affairs department, with its ambitious minister Peter Dutton and his activist secretary, Mike Pezzullo, is feeling its oats. When Malcolm Turnbull granted Dutton his wish for a mega department, it was obvious how things would go.

Now we are seeing a power play which has set Dutton and Foreign Minister Julie Bishop at odds, and raised questions about striking the right balances in a cyber age that brings new threats but also new invasive technology to counter them.

The issue immediately at hand is whether Home Affairs can drag the Australian Signals Directorate – a defence-aligned organisation which spies electronically on foreign targets – into the fight against a broad range of crime in Australia.

As the head of ASD, Mike Burgess, succinctly put it in a draft note for Defence Minister Marise Payne, Home Affairs wants legislative change “to enable ASD to better support a range of Home Affairs priorities”.

The latest move, as documented in bureaucratic correspondence leaked last weekend – everyone assumes in order to blow up the proposal – came from Pezzullo. But Pezzullo was formalising a plan foreshadowed by Dutton as soon as he was sworn into the Home Affairs portfolio.

In December Fairfax reported Dutton saying that ASD would be used more in Australian investigations into terrorism, drug-smuggling, child exploitation and other cross-border crimes.

Put in the simplest terms, under the plan the Australian Federal Police, ASIO and similar agencies would collect the data, as they do now, while an empowered ASD could supply the technical capability to disrupt or prevent the crime online.

After publication of the leaked correspondence in the Sunday Telegraph, headlined “Secret plan to spy on Aussies”, Pezzullo, Defence Department secretary Greg Moriarty, and Burgess issued an opaque statement that, when you cut through the bureaucratise, indicated the option for a wider use of ASD was on the table.

Meanwhile Bishop told reporters “there is no plan for the government to extend the powers of the Australian Signals Directorate so that it could collect intelligence against Australians or covertly access private data”.

That would appear to be true, but it is also true Dutton had already flagged publicly a proposal to expand ASD’s remit, and the Burgess draft note clearly stated that the Home Affairs department had advised it was briefing its minister to write to the Defence Minister.

The fine distinction between expanding ASD powers but it not collecting intelligence on Australians is where the confusion lies, and that will need to be carefully laid out.

Bishop and Dutton have a record as sparring partners. The two ministers contrast in style but both are tough operators who don’t take a backward step. This is the second matter on which they’ve recently clashed – the other was Dutton’s desire to bring in white South African farmers on the basis they were subject to “persecution”.

Dutton, announcing this week AFP deputy commissioner Karl Kent as the first Transnational Serious and Organised Crime Coordinator within Home Affairs, told a news conference that the capacities of various agencies had to be looked at “including obviously … the capacity of ASD”.

Dutton stressed any change would have safeguards. “As for some claim that there’s going to be some spying taking place on Australian citizens, it’s complete nonsense,” he said.

“If there was to be any look at ways in which we could try and address the cyber threat more effectively, it would be accompanied by the usual protections, including warrant powers”, ticked off by the attorney-general or the justice system.

Defending his position on Thursday, Dutton talked about child exploitation, a guaranteed hot button, pointing out that people were conveying “images of sexual acts against children in live-streaming on the internet.

“We’ve got to deal with that threat. We have the ability, potentially, to disrupt some of those servers. At the moment the ASD … could disrupt that server if it was in operation offshore, but not if it was operating out of Sydney or Melbourne,” he said.

It is believed that Defence is unimpressed with the move on ASD, from July 1 a statutory agency but traditionally in its bailiwick. But it is Bishop who is most obviously taking the issue on, even though her portfolio is not directly involved.

For Bishop, the exercise has flouted the manner in which such a major bid for change should be handled, leaving most ministers blindsided.

Home Affairs’ case receives some support from a recent submission to the parliamentary joint committee on law enforcement by David Irvine, former head of ASIO and now chairman of the Cyber Security Research Centre, a body set up to promote industry investment in cyber security research.

Irvine writes: “Both national security threats and criminal activity exploit the internet in similar ways. Both need to be countered or managed using similar investigative tools and techniques.”

“Australia’s national capacity to counter threats and criminal activity using cyber investigative tools is relatively under-developed, uncoordinated and fragmented”, making it “difficult for agencies to cope with the pace of technical change,” he says.

Irvine argues for a new body to provide “expert technical cyber investigative services in support of law enforcement and national security investigations”, done by Commonwealth and state agencies.

He says such a body might fall within Home Affairs “but it would depend extensively upon the offensive and defensive cyber operational skills of the Australian Signals Directorate, and its offshoot the Australian Cyber Security Centre”.

The tug of war over ASD may have some way to run but with cyber risks becoming an increasing preoccupation, at this stage Dutton and Pezzullo appear to have a head start. It is now a question of where Malcolm Turnbull will come down. It is hard to see him saying no to Dutton.

But the implications of any extension of ASD’s remit should be fully debated sooner rather than later. As the Inspector-General of Intelligence and Security Margaret Stone wrote earlier this year, a change to ASD’s “focus for its covert or intrusive intelligence related activities to people and organisations inside Australia would be a profound one”.

The ConversationThe pros and cons of the Dutton bid need a lot of public airing before the government reaches a conclusion, rather than that conclusion being presented as a fait accompli.

Michelle Grattan, Professorial Fellow, University of Canberra

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

Legal highs: arguments for and against legalising cannabis in Australia



File 20180417 32339 16n0gjo.jpg?ixlib=rb 1.1
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.

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



File 20180413 105522 c5joqk.jpg?ixlib=rb 1.1
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.

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 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.

Why are rates of domestic violence in Australia still so high?



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One in six Australian women have experienced partner violence.
Isaac Holmgren/Unsplash

Heather Douglas, The University of Queensland

Australian Bureau of Statistics (ABS) data released this week as part of the Personal Safety Study (PSS) reveals 16% of Australian women have experienced partner violence.

The 2016 PSS was conducted across Australia and surveyed around 21,000 people about their experience of violence. The PSS was last run in 2012, and before that in 2005, so it’s possible to make some comparisons across time.

The statistics show a mixed picture. Overall, the proportion of Australians who report that they experienced violence in the past year has declined from 8.3% in 2005 to 5.4% in 2016.

However partner violence remains high, especially towards women.


ABS

Around one in six women (16% or 1.5 million) have experienced physical violence by a partner, compared with one in seventeen men (5.9% or 528,800).


Read more: Study confirms intimate partner violence leading health risk factor for women


Women were much more likely to experience physical violence from a previous partner than a current one. Around 2.9% of women reported violence by a current partner, while around 14.6% of women experienced violence by a previous partner. There has been little change in the partner violence figures since 2005.

In the last few years, significant resources have been devoted to changing attitudes towards domestic violence – so why aren’t the numbers going down?

One answer may be that broader attitudes towards women and relationships need to change and this takes a long time. Campaigns like Let’s Change the Story and The Line focus on creating the deep and long-lasting cultural change that’s needed but it’s probably still too early to see results.

Another answer might be that some people are changing, and using violence less. But as we talk more about domestic violence, it loses the stigma historically attached to it. As a consequence, more people are prepared to name it and report it. This keeps the figures stable.

The ABS statistics show that some women* report violence by their intimate partners after separation rather than during the relationship. Of the women who reported experiencing domestic violence, 92.4% were living with their partner and 7.6% were separated.

This is no surprise. Leaving the relationship may threaten an abuser’s sense of control and violence may be one tactic used in an effort to reassert control or punish the victim for leaving.


Read more: Why doesn’t she just leave? The realities of escaping domestic violence


In 1990, Martha Mahoney coined the term “separation assault” in recognition of the phenomenon. Separation is now a well-known risk factor for heightened violence. In government death reviews, actual or intended separation is a characteristic of a high proportion of intimate partner homicides.

Risk assessment tools that police and support services use in safety planning now routinely identify separation as a key risk factor for further violence and death.

As we reduce the stigma of naming domestic violence we may see more women seek help.
Annie Spratt/Unsplash

Notably, while the ABS statistics have remained relatively stable, calls on services have increased significantly over recent years. Applications for domestic violence protection orders in Queensland have jumped from 23,794 in 2012-13 to 32,221 in 2015-16 – a 26% rise.

Similarly in Victoria, 74,551 family violence and personal safety matters were heard by the Victorian Magistrates Court in 2015–16. This was a 27% increase since 2011–12.

In Queensland, reports to police of breach of domestic violence protection orders have more than doubled between 2012 and 2017 and these have also increased significantly in Victoria.

According to annual reports, calls for support to Queensland’s domestic violence support line, DVConnect, have tripled between 2012 and 2016. Safesteps, Victoria’s domestic violence support line, has seen a similar increase.


Read more: Deaths after seeking help point to priorities in tackling domestic violence


Given the ABS reports that figures on domestic violence remain relatively stable, why is there such an increase in requests for support and services?

The ABS statistics are collected through a survey and include questions about seeking help.

The increased numbers of applications for protection orders, reports of breach of those orders and increased calls to support services might suggest that people are increasingly willing to seek help in response to the violence they are experiencing.

Perhaps some are choosing to leave their violent partners. Again, this increase in help-seeking may be explained in part by a reduced stigma associated with domestic violence and the increased willingness of people to name it.

Another explanation might be that services are improving their understanding of domestic violence and are getting better at screening for domestic violence and making appropriate referrals.

Whatever the reason for them, the relative stability of the overall statistics in the ABS study leave no room for complacency. The figures remain too high.

As we reduce the stigma of naming domestic violence we may see more women seek help, and when they do they will often be placing themselves at serious risk. We need to continue to develop and resource robust responses to individual perpetrators and appropriate support for victims.


The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.

The Conversation* This article originally said higher number numbers of women reported violence by their intimate partners after separation than during the relationship. This has now been corrected. The article also been amended to reflect that the ABS survey included questions about help-seeking.

Heather Douglas, Professor of Law, The University of Queensland

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

A national amnesty will not rid Australia of violent gun crime



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Michael Keenan claims an amnesty will help get illegal guns off Australian streets.
AAP/Caroline Schelle

Samara McPhedran, Griffith University

After 18 months of false starts, Australia is about to hold another gun amnesty for three months from July 1.

Last week, Justice Minister Michael Keenan claimed the amnesty would take illegal guns off Australian streets. He went on to link the amnesty with terrorism, citing the Lindt Cafe siege and the murder of Curtis Cheng as examples.

In a time when the spectre of terrorism is increasingly used as both a shield to prevent scrutiny of policies and a sword to attack anybody who criticises government decisions, we would do well not to accept at face value Keenan’s claims. So, are gun amnesties an effective way of tackling serious criminal activity?

What is an ‘illegal gun’?

To legally own a firearm in Australia, you must have a licence.

Since 1996, all firearms must be registered. Unregistered firearms are illegal.

Anyone who possesses a firearm without holding a licence, or without the appropriate category of licence for that firearm, is in illegal possession.

“Illegal guns” occur in many different situations. These range from licence holders who may have registered some – but not all – of their firearms after that requirement was introduced, to people whose licence has expired but who still have registered guns, to people who would never be able to obtain a firearm licence but nevertheless possess prohibited firearms.

How will the amnesty work?

Each state and territory is responsible for its own amnesty. It is likely they will look similar to the many amnesties that have run around Australia on a periodic – and sometimes permanent – basis in the last 20 years.

There has been no modelling of how many firearms are likely to be handed in, and the numbers collected under past amnesties vary greatly. Unlike 1996, there will be no government-funded compensation scheme.

Although guesstimates abound, there is no way of knowing how many illegally owned firearms exist. There are no accurate records of how many firearms were in Australia before gun laws changed in 1996.

Even though there are figures for the number of guns handed in under previous amnesties, we cannot say what that translates to as a percentage of the total pool of illegal firearms.

We also have no knowledge about how many guns flow into the black market through means such as illegal manufacture or illegal importation.

Do amnesties reduce gun crime?

Despite talking up the amnesty, Keenan also said it is:

… probably not going to be the case [that] we would have hardened criminals who have made a big effort to get a hand on illegal guns [who] would necessarily be handing them in.

This explains why gun amnesties are not a particularly effective response to firearm crime. Australian and international evidence suggests the people who respond to amnesties are characteristically “low risk”: they are not the ones likely to be involved in violence.

It may sound clichéd to say that “high risk” people do not hand in their guns, but it also appears to be correct.

What about organised crime and terrorism?

Illegal firearms are found in a range of criminal activities, including organised crime and incidents described as “terrorism”.

The argument runs that by reducing the number of guns, amnesties will reduce the number that are stolen and curtail the ability of high-risk individuals – “hardened” criminals or otherwise – to get their hands on black market guns.

However, available evidence does not support arguments about theft as a key source of crime gun supply. Although little data is publicly released about crime gun sources, what we know suggests theft accounts for less than 10% of guns traced in relation to criminal activity.

Problematically, many guns come from “unknown” sources. For example, there was no record of the sawn-off shotgun used in the Lindt Cafe siege ever legally entering the country, and it seems the revolver used to murder Curtis Cheng has equally vague origins.

We also know from international studies that criminals are resourceful and highly adaptable. When one source of firearm supply closes off, they typically have networks enabling them to switch to alternative sources.

This is part of the reason why tackling criminal possession of firearms is so challenging. And when we think about the drivers of demand for illegal guns as well as supply, responding becomes even more difficult.

This is why it is disappointing that Australian thinking follows such predictable, well-trodden paths. It seems politicians and bureaucrats tasked with developing firearm policies have little interest in new, innovative, and evidence-based responses to complex problems, and would rather just do more of what they have been doing for decades.

By all means run amnesties. There is no harm in them. They provide a great means for people who want to obey the law to get rid of guns that are unwanted or that they may not legally possess.

The ConversationBut let’s be realistic about what amnesties are, and are not, likely to deliver.

Samara McPhedran, Senior Research Fellow, Violence Research and Prevention Program, Griffith University

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