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.
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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.

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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.

5 Arrested in India Over Alleged Rape, Kidnapping


TIME

Indian police say they have arrested five men in connection with the alleged rape and kidnapping of a Japanese woman.

The woman, who claims she was abducted for 12 days, told police a man pretending to be a tour guide led her from Kolkata (formerly Calcutta) to Gaya district in Bihar, where she was raped by two men who held her at gunpoint, the New York Times reports.

Kolkata police official Pallab Kanti Ghosh said Saturday that the roles of two of the five men arrested still need to be confirmed, as well as the exact amount of time she was held captive during the incident, which is believed to have taken place some time after November 20, 2014.

Violence against women in India has drawn national more scrutiny and international attention in the last two years, the NYT wrote, following the horrific gang rape and murder of…

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