Last week, another paramedic was assaulted on the job amid growing public outcries over attacks on emergency workers, with the government being put under major pressure to toughen the law.

Between 2009-2014, more than 24,500 healthcare employees reported being a victim of a violent incident at work. By February this year, 6,245 code blacks were reported in South Australian public hospitals for 2016-17, compared to 4,765 at the same time in 2015-16. As much as 90% of emergency department staff have experienced some type of violence over the course of their professional career.

In 1999, the Australian Institute of Criminology ranked the health industry as the most violent workplace in the country. US statistics reveal that healthcare workers are 5 to 12 times more likely than other industries to experience violence in the workplace.

Intoxicated patients have assaulted more than 9 in 10 emergency nurses and doctors in the last twelve months. So what more can, and should, be done to protect vital healthcare workers from experiencing violence, and the threat of violence, at work? This piece explores these questions.

Doctor / patient relationships: Built on trust, morphing into fear

In the early 20th century, the philosophy underpinning doctor-patient relationships was a paternalistic model. But this has since evolved into a more collaborative approach.

This contemporary model, reinforced by cases such as Rogers v Whitaker, involves the sharing of information, doctor-patient collaboration, and mutual agreement on a proposed treatment plan. There has, however, been a noticeable shift in community attitudes towards the medical profession, with many patients appearing dismissive of medical advice and preferring information found on the internet.

High-profile Sydney orthopaedic surgeon Dr Munjed Al Muderis, an Iraqi refugee, faced ongoing online abuse, harassment, defamatory comments and death threats from a patient over a period of years. The patient claimed that Dr Al Muderis botched a hip operation procedure, which reduced sensation to his penis and testicles. There was no evidence to support the patient’s claims and any medical negligence or wrongdoing was discounted by the Health Care Complaints Commission. Dr Muderis was awarded $480,000 in damages for defamation after the judge described him as the “perfect plaintiff”.

In an already challenging profession, where clinicians experience high rates of depression and suicide, are we doing enough to protect Australian healthcare professionals?

Recent high profile tragedies such as the one punch attack of Dr Patrick Pritzwald-Stegmann and the shocking killing of Gayle Woodford clearly demonstrate that current practices are inadequate.

Mental health concerns rapidly on the rise

The health and welfare of Australian medical practitioners is not only being influenced by physical violence but also by non-physical forms of abuse such as aggressive language and intimidating behaviour.

According to HeadsUp’s Final Report on Workplace Bullying in Australia, employees who are bullied have an increased risk of suffering from serious mental health conditions.

As has been extensively documented, health professionals (and students) are already at a heightened risk of mental health issues, depression and suicide.

Lack of appropriate support is a common obstacle for medical staff seeking mental health assistance.

Some commentators believe that mandatory reporting laws, which came into effect in 2010, have a chilling effect on addressing mental health concerns among medical practitioners. At a basic level, these laws require GPs and other doctors to report concerns relating to ‘fitness to practice’ in fellow health professionals, including ‘problems’ such as mental health issues.

Against the backdrop of mandatory reporting legislation, practitioners may be hesitant to access mental health support if it will mean a ‘black mark’ against their name. It is also a significant barrier to adequately addressing violence against health staff.

A 2009 Senate Inquiry into the then proposed mandatory reporting laws demonstrated concerns that the legislation would discourage practitioners from seeking mental health treatment, and that exemptions from mandatory reporting should be created for treating health practitioners. Western Australia is the only jurisdiction where such recommendations have been implemented and national mandatory reporting laws remain an ongoing concern among the medical profession.

Law reform to protect practitioners

On Monday this week, Cabinet agreed that any attack on Victoria’s emergency service workers would be treated as a category-one offence (the same as murder and rape) by the courts under tough reforms to be imposed by the State Government.

Elsewhere, criticism of national mandatory reporting laws has been picked up by politicians.

The Council of Australian Governments (COAG) announced its intention to work with State and Territory health departments, as well as the Australian Medical Association (AMA), to provide national legislative protection for doctors seeking treatment for mental health and stress-related conditions.

Following the 13 April 2018 COAG meeting, Ministers unanimously agreed to remove barriers for health practitioners seeking treatment for their own mental health conditions. However, both the AMA and the Royal Australasian College of General Practitioners have been concerned about the wording of the COAG statement, with too much room for doubt and confusion as to how affected practitioners would be handled.

The government has investigated the need for further reforms in regard to practitioner mental health, as well as the protection of hospital staff from violence.

The NSW Inquiry into Violence Against Emergency Services Personnel recently published recommendations acknowledging the high levels of violence against emergency services personnel and made nearly fifty recommendations to improve the safety of emergency staff. The government has since responded to these recommendations.

Conclusion

The rise of violence against hospital staff and the deleterious impact that physical and emotional abuse can have on a medical practitioner’s safety and wellbeing is starting to receive the community and political acknowledgment it deserves.

It is imperative that both healthcare workers and the broader community continue to apply pressure on the government to make urgent reforms in this space lest health practitioners are physically and mentally destroyed by their working environment and the public they serve.

It has been a historic year for the Australian LGBTQIA community. The passing of the Marriage Equality bill has been celebrated by Australians and people all around the globe. For gay and lesbian Australians, the law has finally caught up and reflects current social values.

The same can be said for the Australian transgender community. In a landmark decision, Re Kelvin, the Family Court is no longer required to authorise hormone treatment for teenagers with Gender Dysphoria. The decision to undergo medical treatment and hormone therapy now lies with the child seeking treatment, their parents, and the child’s medical team. This removes previous the requirement of Court approval.

What is Gender Dysphoria?

An individual whose gender identity differs from the gender they were assigned at birth experiences gender diversity (also known as transgender). Gender Dysphoria, or gender identity disorder, describes the emotional distress felt by an individual whose sense of being male or female differs from the gender they were assigned at birth. It involves a conflict between a person’s physical or assigned gender and the gender which he, she, or they, identify. In diagnosing Gender Dysphoria in children, there must be some form of emotional distress present for at least six months.

About 1.2 percent of Australian school children (about 45,000 children) are thought to identify as transgender.

Treatment for Gender Dysphoria can take many forms and is always tailored to the individual and their family. In some instances, people with Gender Dysphoria may choose to medically transition with sex-change surgery and/or hormone treatment.

Hormone treatment is a two-stage process.

Stage one delays puberty through the use of hormone blockers by temporarily suppressing the more obvious changes to an individual’s body in early puberty. Stage one is reversible and therefore does not require the Court’s approval.

Stage two treatment is the process of administering hormones (either estrogen or testosterone) to change the body to be more consistent with the adolescent’s affirmed gender; this results in permanent consequences and cannot be reversed.

Hormone treatment in Australia

For transgender teenagers in Australia, surgery is not legally permitted for individuals under 18 years of age. Undergoing hormone treatment as an adolescent previously required the Court’s approval.

The Family Law Act 1975 (Cth) confers power on the Family Court of Australia to determine applications concerning the administration of Stage two medical treatment for teenagers with Gender Dysphoria.

Stage two hormone treatment was previously classified as a “Special Medical Procedure” which goes beyond parental authority and that requires a determination by the Court.

Re Jamie is the longstanding Family Court authority that deals with hormone treatment. In this case, the Court held that Stage two hormone treatment requires the Court’s authorisation unless the child is “Gillick competent.” A child who is “Gillick-competent” is sufficiently mature to understand the proposed medical procedure and can, therefore, provide their informed consent.

A determination of “Gillick competence” can only be made by the Court meaning that all transgender adolescents seeking Stage two treatment were previously required to bring a case before the Family Court, making Australia the only country in the world that required teenagers to go through such a process.

However, in September of last year, the Family Court was asked in the case of Re Kelvin to reconsider their power to authorise Stage two treatment and determine Gillick competence.

Re Kelvin

Re Kelvin concerned a 16-year-old transgender male who made an application to the Family Court seeking approval for testosterone treatment. The case went to the Full Court of the Family Court, where the Court reviewed its role in authorising medical treatment.

In a landmark decision, the Full Court of the Family Court ruled that young people who experience gender dysphoria and wish to undergo hormone treatment may now be able to do so without the approval of the Family Court.

The Court decided that it was appropriate to depart from the authority in Re Jamie and for the law to better reflect the current state of medical knowledge. The Court recognised increased awareness of the risks associated with not treating an individual experiencing Gender Dysphoria and advancing medical knowledge in this area.

The risks involved and the consequences which arise out of the treatment being at least in some respects irreversible can no longer be said to outweigh the therapeutic benefits of the treatment.”

The decision has been welcomed by the transgender community, legal academics, and proponents of law reform.

Advocates recognise the financial burden and emotional distress involved with applying to the Family Court – a process that causes significant delays where timing is a critical factor to ensure successful treatment.

The Re Kelvin decision marks an end to a ‘bizarre legal anomaly,’ which was born of out-dated attitudes towards transgender persons.

For those in favour of a more conservative approach, it is the irreversibility of Stage two treatment that has been a cause for concern. The Family Court provided an extra measure of protection to vulnerable teenagers experiencing Gender Dysphoria. Between August 2013 and August 2017, the Family Court dealt with 63 applications for either Stage two hormone treatment or surgical intervention and approved treatment in 62 instances.

Critics argue that these decisions demonstrate the liberal exercise of power by the Family Court that did not deny treatment where it was considered to be in the child’s best interests.

Conclusion

The impact of this decision is yet to be fully realised. The Court still maintains its inherent power under the Family Law Act. It is possible that this decision will be challenged in the future. However, for the time being, it appears this has been a significant and positive step forward for the transgender community.

In its final sitting week of 2017, the Federal Parliament did us proud.

Of course, the main achievement was legalising same-sex marriage before the year’s end. But the Parliamentary Committee charged with conducting the Inquiry into establishing a Modern Slavery Act in Australia (the Inquiry) also handed down its final report, which has been widely commended for its innovative and ambitious recommendations.

Background

The Inquiry commenced in mid-February 2017 with a pretty demanding mandate. Its Terms of Reference ranged from investigating the nature and extent of modern slavery, both in Australia and globally, to considering international best practice in addressing the problem.

The Committee released its interim report in mid-August, indicating its intent to recommend the introduction of a Modern Slavery Act (the Act) in Australia inspired by similar legislation in the UK. It provided specific support for two aspects of the UK Act: mandatory supply chain reporting and the establishment of an Independent Anti-Slavery Commissioner. In the interim report, the Committee also committed to the consideration of including provisions in the Act relating to orphanage tourism, victim support and Australia’s visa regime.

Even before the release of the interim report, the Government agreed to introduce a supply chain reporting requirement and released a consultation paper seeking comment on a proposed model.

Final report

The final report is both a credit to the Committee members and a testament to the quality of submissions and witnesses who appeared before the Inquiry. Titled Hidden in Plain Sight, the final report provides a detailed and accurate picture of the occurrence of modern slavery in Australia and overseas and how it might best be addressed.

Hidden in Plain Sight is separated into nine sections, each focusing on a different aspect of modern slavery.

The first chapter provides background on the Inquiry, including the initiatives that have already been implemented in Australia to combat modern slavery and an outline of the report’s contents.

The second chapter considers whether there is a need for a Modern Slavery Act in Australia. While many of the provisions of the UK Act are already part of Australia’s legislative framework for addressing modern slavery, the Committee identified several gaps in our approach. It also noted the potential benefit of consolidating Australia’s legislation into a single ‘Modern Slavery Act’ in raising awareness of the issue. Ultimately, the Committee recommended introducing mandatory supply chain reporting and the establishment of an Independent Anti-Slavery Commissioner to bring Australia in line with requirements in the UK. It also made several suggestions for building on the UK Act, including improving support for and protection of survivors of modern slavery.

The third chapter summarises the available data and evidence of the prevalence of modern slavery both overseas and in Australia. The report acknowledges that due to the lack of an agreed definition of ‘modern slavery’ there are significant challenges in measuring its prevalence. However, the Committee maintains that Australia should continue its international leadership role – particularly in the Asia Pacific where estimates indicate that modern slavery is most prevalent – and dedicate more resources to support the Australian Institute of Criminology to develop an enhanced research and monitoring program.

The report then outlines in chapter four in detail the role of the proposed Independent Anti-Slavery Commissioner including the scope of the Commissioner’s powers, level of independence, and its interaction with pre-existing bodies of a similar nature, such as the Attorney-General’s Department and the Ambassador for People Smuggling and Human Trafficking.

The fifth chapter considers the practicalities of introducing a modern slavery reporting requirement for supply chains. Businesses would be required to report annually on the prevalence of modern slavery in their supply chains and a publicly accessible repository of reports would be established. It ultimately recommends that such a requirement be introduced, with a revenue threshold of $50 million and penalties for those who fail to report (applying to the second year of reporting onwards).

The sixth chapter calls for a more victim-centred approach to combating modern slavery. In the past, victim support and protection have been contingent on a victim participating in police investigations and criminal prosecutions. The report makes the laudable recommendation of de-linking access to the Support for Trafficked People Program and the Human Trafficking Visa Framework (including the Bridging F visa and Referred Stay (Permanent) visa) from compliance with criminal investigations. It also recommends extending the period of support for both the Bridging F visa and the Support for Trafficked People Program from 45 to 90 days, with the option of multiple extensions.

Even more encouragingly, the Committee recommends introducing a defence for victims of modern slavery who are compelled to commit a crime during the period in which they are exploited. It also suggests a national victim compensation scheme should be implemented where, at present, the available compensation varies among the states and territories. If the recommendations are implemented by the Government, victims will also have the right to sue those responsible.

In relation to criminal justice responses to incidences of modern slavery, the Committee recommends in chapter 7 a more coordinated approach be adopted. The report also recommends specialised modern slavery training for law enforcement and staff of frontline agencies including Medicare.

Orphanage trafficking breakthrough

The report then addresses in chapter 8 concerns related to orphanage trafficking.

Through the publication of this report, Australia is the first country to formally recognise the connection between orphanage trafficking and modern slavery.

It makes extensive recommendations, including the establishment of a national awareness campaign, the prioritisation of aid and funding to community-based initiatives and family preservation, and introducing minimum ‘external conduct standards’ for organisations operating overseas.

The most innovative recommendation is around introducing a register of overseas institutions that meet these standards. The report then recommends that penalties eventually be imposed on individuals, businesses, organisations and other entities that continue to support unregistered orphanages (by funding ‘orphanage tourism’ visits and/or establishing, funding, or donating to them) after the two year transition period.

Finally, in chapter 9 the report recommends an in-depth review of Australia’s visa framework for migrants to replace or eliminate ‘tied’ visa conditions which often make such migrants vulnerable to exploitation and modern slavery. This recommendation was made in the light of several high profile cases of labour exploitation involving backpackers and working holiday visa holders in the horticultural industry in regional Australia.

Conclusion

While the report is highly comprehensive and represents a strong commitment across the political spectrum towards eliminating modern slavery, more work needs to be done to ensure that the private sector plays its role in complying with the recommendations and actively re-thinking how they can identify and limit modern slavery in the course of business activities.

Hopefully, urgent implementation of the Committee’s report will be at the forefront of the Government’s mind as we head into the first sitting week of 2018.

More on BucketOrange Magazine

• Human Trafficking Training For Flight Attendants Unlikely As Government Sticks Head In Sand
• New Modern Slavery: Australia Leading Fight Against Orphanage Tourism
• Find Another Way To Feel Better About Yourself ‘Do-Gooder’: The Narcissism Of Voluntourism

How does a society balance the values of freedom and safety? And what role do political leaders have in maintaining that balance? If we take recent comments from our political leaders seriously, then they either don’t care about these questions, or consider themselves helplessly unable to resist the demands of the nation’s law enforcement agencies. Either reality is concerning.

In early October this year, leaders from Commonwealth, state and territory governments agreed to a new package of anti-terrorism laws. Four of these reforms, in particular, have caused a stir since the announcement:

• Laws allowing police to hold terrorism suspects as young as 10 years of age without charge for up to two weeks
• Laws introducing a National Facial Biometric Matching Capability program making passport, visa, citizenship and driver’s licence photos available to authorities in real time to identify criminal suspects
• The new crime of carrying out terrorist hoaxes; and
• The new crime of possessing instruction manual material for carrying out terrorist acts.

Taken by themselves, these proposed laws are worrying. There are serious concerns about the implications of expanding the scope of detention without charge and of a nation-wide biometric information sharing network. It is unclear whether these changes will add anything meaningful to the existing legal framework.

It’s when these laws are put into the context of Australia’s long-running fixation with security-based law reform, however, that their true significance for the overall health of Australian society becomes clear.

Some context

It’s not as if the state and federal governments’ agreement this month marks a new turn towards the expansion of law enforcement powers in the name of security. Instead, it is yet another step down a path we’ve been moving steadily along for at least 15 years.

The creeping expansion of law enforcement powers comes at a cost, namely the protective buffer of civil liberties. Civil liberties are a collection of freedoms that need to be protected if the dignity, integrity and well-being of individuals are to be kept safe from the demands of the community.

When the welfare of the collective is perceived to be threatened, there is a temptation to just do whatever needs to be done to meet the threat.

Being the confused, biased creatures that we are, we often accept measures that trample on the well-being and dignity of individuals or minority groups, in the name of communal safety.

This is one reason why civil liberties are so important; they go some way to protecting individuals against the fears of the group.

This means that in any society that cares at all for the importance of individual autonomy in the face of collective fear, there is going to be an ongoing struggle between the demands of security and the demands of civil liberty. Both are indispensable, and both have to be accommodated, somehow, side by side. People need to be protected from the violence of terrorists, and they need to be protected from the violence of the majority. Balancing these two goals is one of the most important and difficult responsibilities that political actors, from leaders to voters, have to manage.

Succumbing to the idea that ‘anything is acceptable as long as it keeps us safe’ means renouncing responsibility for maintaining that balance. Once that renunciation is made, there isn’t much that is going to resist the slide towards the lawless comfort of a police state.

To stop that slide, we need to acknowledge that the balancing of security and civil liberty relies on continuous dialogue and debate, and relies on institutional resistance to those arms of government tasked with keeping us safe.

What was most alarming about the October meeting was the insistence from our leaders that there is no debate to be had at all. For example, Victorian Premier Daniel Andrews stated:

Notional considerations of civil liberties do not trump the very real threat, the very real threat of terror in our country today.”

According to Andrews, this balance of ‘security versus civil liberties’ is not a debate we can afford to have. This idea of safety outweighing all else has been a recurring theme from our political leaders in recent years.

In September 2014, Tony Abbott told Parliament how Australians would have to accept reductions in freedom “for some time to come” as a consequence of increased security aimed at saving lives from the threat of terrorism. He ultimately justified the limiting of freedom as a necessary part of achieving a more fundamental freedom:

After all, the most basic freedom of all is the freedom to walk the streets unharmed and to sleep safe in our beds at night.”

The bipartisan nature of this attitude was evident in Opposition leader Bill Shorten’s reply when he noted that “keeping our people safe is above politics.”

This mindless assertion, that security is an automatic trump over all other considerations, strangles the debate that must be had about the appropriateness of eroding civil liberties in the name of safety.

Andrews also said:

What I would be worried about is if we, heaven forbid, had another terrorist attack in this country and it became clear that we had technology available to us – tools and powers and laws and resources available to us – and we had squibbed it because of notional concerns about civil liberties, overlooking something if terrorists strike.” 

These comments suggest that he is worried about opening himself up to blame for a future terrorist attack, should he resist any law or technology proposed in the name of keeping us safe. In a way, he is probably right to be scared, as his opponents and voters could well blame him and his colleagues personally after an attack.

However, there are going to be future terrorist attacks, and the argument will always be available after each one that politicians could have done more to prevent it. That makes the ‘security at any cost’ very attractive to a political leader. But resisting that fearful slide into ‘security at any cost’ is something we need from them. Acknowledging the possible personal consequences of taking a principled stand is one of the things that makes someone a leader.

If our leaders don’t resist their own fears, then they are followers.

This image of our leaders as meek followers is brought home more fully by Andrews’ suggestion that he and his colleagues have no option but to consent to whatever law enforcement agencies ask for:

The luxury that no political leader in Australia has is to say no to law enforcement, ‘No, we won’t give you what you say you need, we won’t give you the technology that you need to keep us safe … Please go and keep us all safe but we won’t give you what you need.” 

Of course, law enforcement agencies are in a position to know what they need to get their jobs done. But law enforcement agencies can’t be relied upon to know when the powers they demand upset the security/civil liberties balance to an unacceptable degree. ‘What law enforcement agencies want’ cannot be the standard by which we decide what is acceptable; the obvious and stark conflict of interest rules that out.

This issue highlights a double-sided nature of law. On the one hand, the law gives politicians and law enforcement the powers they need to maintain order. On the other hand, the law places restrictions on how they can go about their duties. This dimension of law as an impediment to action is important if we want to make sure that the power we delegate to the state isn’t handled arbitrarily.

Australia is particularly weak when it comes to protective and corrective mechanisms to provide protection against the accumulation of executive power. Andrews is telling when he calls our civil liberties ‘notional’. Unusually for a Western society, Australians do not have many legally-entrenched civil liberties. For example, there is no nation-wide Bill of Rights. This is why discussion and debate are so important, and why the demands of law enforcement require pushback from other actors in society.

Going too far?

October’s agreement is a further step down the path of ‘security above all else’. How can we tell when we’ve gone too far down that path? Identifying proposals for laws that are troubling in themselves, like the pre-charge detention of children, is one way. The Law Council has called the pre-charge detention laws ‘extraordinarily draconian’.

Another way is to listen to those who are trying to communicate the wider context of Australia’s turn towards the unshackling of executive power in the name of safety. Former President of the Australian Human Rights Commission Gillian Triggs is one such prominent voice:

Questions of national security, justified by a fear of terrorism, often conflated with a fear of unauthorised arrivals of immigrants, asylum seekers and refugees, even a fear of Islam itself, have shielded government measures from political challenge as a taboo subject, creating a vacuum of silence in the absence of strong leadership.“

It doesn’t require any imagination to see what an imbalance of executive power, handled by Australian authorities without independent oversight, would look like. In Australia’s archipelago of detention centres, there is a long-running reign of abuse and violence.

Civil liberty is already a shaky, ‘notional’ concept in Australia, especially for individuals belonging to groups marginalised from political power. Our obsession with crime and safety has its costs, and whether the unshackling of executive power should continue unchecked is a matter of urgent national debate. Sadly, it seems as though our leaders aren’t even prepared to acknowledge there is a discussion to be had.

What do you think about the balance between security and civil liberties? Do the ends justify the means? Let us know in the comments!

Last week, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake the first comprehensive review of the family law system since its the Family Law Act commencement in 1976 which he considers to be “necessary and long overdue.”

The review will be led by Professor Helen Rhoades from Melbourne Law School in response to the evolving needs of Australian families since the 1970s. It will focus on crucial areas of importance to Australian families and ensure that the family law system prioritises the best interests of children, addresses family violence and child abuse, supports families (including those with complex needs) to resolve disputes quickly and safely, while also minimising the financial burden.

Terms of reference

The ALRC received the terms of reference from Attorney-General George Brandis on 27 September 2017:

• there has not been a comprehensive review of the Family Law Act 1975 (Cth) since its commencement in 1976
• the diversity of family structures in contemporary Australia
• the importance of ensuring the Act meets the contemporary needs of families and individuals who need to use the family law system
• the importance of affording dignity and privacy to separating families
• the importance of public understanding and confidence in the family law system
• the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner
• the paramount importance of protecting the needs of the children of separating families
• the pressures, particularly financial pressures, on courts exercising family law jurisdiction
• the jurisdictional overlap of the federal family law system and the state and territory child protection systems and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation are dealt with in the same proceedings
• the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes
• the benefits of engaging appropriately skilled professionals in the family law system.

Scope of the reference:

The ALRC should have regard to:

• the family law system, including on surrogacy, family violence, access to justice, child protection and child support
• interactions between the Commonwealth family law system and other fields, including family law services, the state and territory domestic and family violence, child protection, and child support systems, including the ALRC Family Violence Report 114.

The ALRC will consider what, if any, legislative amendments should be made to the family law system, the Family Law Act 1975 and other related legislation.

It is expected that the ALRC will conduct consultations with the community, practitioners and experts in family law and family dispute resolution, family relationship and social support services, legal services and health sectors, as well as interested members of the community.

Among the terms of reference, the ALRC has been asked to address whether the family law system is too adversarial in nature, given the high conflict nature of marriage breakups and custody disputes. The alternative, perhaps, is a greater emphasis on mediation.

In an interview with ABC Breakfast, Attorney-General George Brandis said:

It’s always better that disputes be resolved by mediation rather than by litigation, particularly though when they concern intimate relationships, people at a fraught and despairing time of their lives, and of course particularly where the interests of children are concerned.”

President of the Law Council of Australia, Fiona McLeod SC, strongly welcomes the review but cautioned that meaningful and lasting reform will require significant court and legal assistance funding:

The Law Council has long been warning that our family law system is in crisis, primarily due to a lack of funding and resourcing,” Ms McLeod said.

For that reason we welcome this review and especially the selection of the ALRC to oversee it. It is also very pleasing to see the ‘pressures (including, in particular, financial pressures)’ on the courts included in the terms of reference.

While the number and complexity of family law cases has increased sharply in recent years, resourcing has not adequately increased to compensate.

Those on the frontline of our family law system have been sounding the alarms for years. So ‘the appropriate, early and cost-effective resolution of all family law disputes’ is a very appropriate focus of recommendations in this review.

The current lack of resources has meant that families facing the most serious family law issues are waiting for up to three years or more before a final trial.

The Law Council looks forward to contributing to this review, however we note that any significant recommendations for reform will not be able to implemented without corresponding funding.

Of course, properly funding the court system also means properly funding legal assistance services, which are still chronically underfunded according to the Productivity Commission. For this reason we are pleased to see that this review’s scope also includes instructions to consider existing reports relevant to ‘access to justice’,” Ms McLeod said.

Women’s Legal Service Acting Chief, Helen Matthews, also welcomes the review:

We are heartened to see the terms of reference reflect serious issues we see in our work at the family courts – including safety concerns, family violence and protection of vulnerable witnesses. We hope that cost-cuttings do not dominate the review, but rather that access to justice and the safety of women and children in the family law system are prioritised.”

The review will report by 31 March 2019.

Further Information

Subscribe to ALRC inquiry e-news to receive updates from the Review of the Family Law System.

If passed, from mid-2019, the highly contentious legislation would allow those suffering from an advanced and incurable illness, disease or medical condition to seek a medically assisted death.

Since the subject of euthanasia can be so ethically complicated, the details of how the new laws will work in practice are important.

At the end of 2016, an independent panel of healthcare and legal professionals, the Voluntary Assisted Dying Ministerial Advisory Panel (the Panel) was asked to look into those details. The Panel published its final report in July and so it’s now possible to get a sense of how (what the Panel calls) voluntary assisted dying would work.

Who will be able to choose euthanasia?

There are two key tests to determine if a Victorian adult will be able to access assistance to die.

Firstly, they need to have ‘decision-making capacity’, so that they understand what is involved and can make a voluntary, informed decision.

Secondly, they need to have been diagnosed with an incurable disease, illness or medical condition that is:

(a) advanced, progressive and will cause death in not longer than 12 months and which is

(b) causing suffering that cannot be relieved in a manner the person deems tolerable.

These tests mean that there are a few situations in which someone who might want to use the voluntary assisted dying laws won’t be able to do so. For example, some people with dementia may not be able to access the voluntary assisted dying scheme.

Similarly, someone with a mental illness or a disability will not, for those reasons alone, be able to access the voluntary assisted dying scheme. Another result is that it will not be possible to nominate voluntary assisted dying as something you want to be done if you become unable to decide for yourself in the future.

How will someone be able to access euthanasia?

Before a person is able to access the voluntary assisted dying scheme, they have to make three separate requests and undergo two independent medical assessments.

The stages are:

• First request

A person must make a written request for voluntary assisted dying to a medical practitioner. This medical practitioner will be able to conscientiously object to taking part, but if they don’t, they will make a decision as to whether to act as the ‘coordinating medical practitioner’.

• First assessment

The coordinating medical practitioner must conduct the first assessment using the eligibility criteria and must ensure the person is properly informed.

• Second assessment

If the person is eligible, the coordinating medical practitioner needs to refer the person to a second medical practitioner who must carry out a second, independent assessment.

• Second request

If both medical practitioners decide the person is eligible, the person needs to then complete and sign a written declaration, witnessed by two independent witnesses.

• Third request

The person needs to make a final, verbal request to the coordinating medical practitioner. This has to be done at least 10 days after the first request.

Once this is done, and the coordinating medical practitioner has obtained the lethal dose of medication, the person is required to store the medication in a locked box until they decide to administer it.

How will vulnerable people be protected from abuse?

The Panel included a number of different safeguards to help make sure that people do not abuse the assisted dying scheme.

New criminal laws

The Panel has recommended the creation of the following offences:

• inducing a person, through dishonesty or undue influence, to request voluntary assisted dying
• inducing a person, through dishonesty or undue influence, to self-administer a lethal dose of medication
• falsifying records related to voluntary assisted dying; and
• administering a lethal dose of medication to a person who does not have decision-making capacity

Witnesses

The written request must be witnessed by two people in the presence of the coordinating medical practitioner.

One of the witnesses must not be a family member, and both must be at least 18 years of age. Neither witness can be a recipient of any material benefit resulting from the person’s death. If it is the coordinating medical practitioner that administers the lethal dose, an independent witness must be present.

Self-administration

The person who has accessed the voluntary assisted dying scheme is the only person who is permitted to administer the lethal medication.

The only time anyone else will be able to administer the medication is if the person is physically unable to do so themselves. In these circumstances, the coordinating medical practitioner will be able to administer the medication.

Minimum training

Both medical practitioners must be qualified as Fellows of a College. At least one needs to have at least five years post fellowship experience, and at least one needs to have expertise in the person’s disease, illness or medical condition.

Both must have had training in making voluntary assisted dying assessments.

Medication permit

The coordinating medical practitioner will need to apply to the Department of Health and Human Services for a permit before they are able to write a prescription for the lethal dose of medication. A pharmacist will only be able to dispense the medication if there is a valid permit.

Oversight

The Panel recommended the creation of a Voluntary Assisted Dying Review Board, a statutory body that would review every case to make sure the safeguard processes are being followed.

When will the voluntary assisted dying system be set up?

The Victorian health minister, Jill Hennessy, has said that she would introduce legislation to Parliament today and that legislation would come into effect within an 18-month window of the bill passing.

Tomorrow, 21 September 2017, NSW Nationals MLC Trevor Khan will also formally introduce a voluntary assisted dying bill into the NSW Parliament with a second reading speech in the upper house, and formal debate due to begin in October.

This means that if these bills are successful, the voluntary assisted dying framework could come into effect by mid-2019.

What do you think about the contentious bill to legalise assisted dying for terminally ill patients? Do you support or oppose it, and why? Let us know in the comments! 

These are important questions that go to how safe we feel in our community and how safe we actually are.

You will recall earlier this year Mr Dimitrious Gargasoulas – a serious offender, who was on bail in Victoria – killed several pedestrians in Melbourne’s CBD with his car. Victorians have been assured that they can now feel more secure as the government has tightened the Bail Act 1977 (the Act) and bail processes and is to invest more resources to avoid another Bourke Street Tragedy.

Following a review of the bail system, the Victorian Parliament has amended the Act by passing the Bail Amendment (Stage One) Bill 2017, which was assented to on 27 June 2017.

Overhaul of Victorian bail system

Earlier this year, Victorian Premier Daniel Andrews said a number of proposed reforms would make it harder for people accused of serious crimes to be released on bail as part of a complete overhaul of the state’s current bail system. He also said community safety would be given a much higher priority.

But surely the question still needs to be asked: why did it take the shocking deaths of innocent people before the Victorian government acted to give community safety “a much higher priority” over the interests of serious offenders?

It might seem to most of us that what is being acknowledged here by the Victorian government is that it has allowed, to this point, the courts and bail justices to subjugate community interest in the balancing act of community safety versus a ‘presumption in favour of bail’ (or ‘entitlement’ to bail), which arises out of the presumption of innocence.

It is certainly not an ideal state of affairs when judicial officers and bail justices have to be ‘reminded’, by amendment to the Bail Act 1977, to place a higher priority on community safety when making bail decisions.

Surely, even under the previous legislation, community interest should always have had paramountcy?

However, even with the recent amendments to the Act, bail justices and courts will continue to be free to interpret provisions such as ‘compelling reason’ and ‘exceptional circumstances’ as they see fit.

The ‘reminder’ to bail decision-makers in Victoria’s new legislation to put community interest first is, to say the very least, weak.

These reforms flow from the government’s response to a Bail Review following the Bourke Street attack in January this year which was conducted by the former Director of Public Prosecutions and Supreme Court Justice, Mr Paul Coghlan QC. It considered seven questions, which focused on legislative and practical reforms to manage risk and maximise community safety. Mr Coghlan provided the Victorian government with two separate reports. The first report was released on 3 April 2017. The second report was later released on 1 May 2017, making 37 recommendations in total.

First report

In the first report, Mr Coghlan observed that the provisions of the Bail Act 1977 (‘Bail Act’) are ‘very strict’ and that no major overhaul of the system was required. He noted that a general presumption for bail should operate, subject to the reverse onus and unacceptable risk tests. Mr Coughlan stated that considering the Bourke Street Tragedy:

if bail had been refused then, these offences might not have occurred.”

Key recommendations from the first report include:

· a purposes section in the Bail Act 1977 and guiding principles. This would be to ensure that, in making decisions to grant or refuse bail, they are made in the context of policy considerations, which strike a balance between community safety and the presumption of innocence (Recommendation 1)

· section 4 be tightened, making it harder to grant bail for accused individuals (Recommendation 2)

· the unacceptable risk test be amended, so that bail must be refused in all cases, if the prosecution (police) satisfies the bail decision maker (magistrate) that the accused would endanger the safety or welfare of any person, commit an offence, interfere with witnesses, obstruct the course of justice or fail to appear in court to answer to bail (Recommendation 3)

· the ‘show cause’ test be renamed to ‘show good reason’ (Recommendation 4)

· section 4 of the Bail Act 1977, in applying unacceptable risk, exceptional circumstance, and show good reason tests, the bail decision maker must take into account all the relevant circumstances including but not limited to criminal history, compliance with previous grants of bail and the seriousness and nature of the alleged offence (Recommendation 5)

· any accused charged with a serious offence which is alleged to have been committed while on bail must be refused bail, unless they show good reason for bail to be granted (Recommendation 6)

· offences that place an accused in the exceptional circumstances category or show good reason test be listed in Schedules 1 and 2 of the Bail Act 1977 (Recommendation 8); and offences added to Schedule 1 for the exceptional circumstances test, including aggravated home invasion (Recommendation 9)

· offences added to Schedule 2 regarding the ‘show good reason test’ including manslaughter, child homicide, armed robbery, threats to kill and rape (Recommendation 10)

· bail decisions to be delayed for intoxicated offenders (Recommendation 11)

· only a magistrate or judge may grant bail to an accused in the exceptional circumstances category (Recommendation 14); and

· further review of the role of bail justices be conducted, and pending that review, the retention of the bail justice system (Recommendation 18).

Second report

The second report encompassed other complex matters such as the administrative side of reforms.

Key recommendations from the second report include:

· the Court Integrated Services Program (CISP) receive further resources to allow it to provide more services around the state (Recommendation 27). The CISP provides support to accused persons and access to services and support aimed at reducing reoffending

· The Honorary Justice Office consider specialised training for bail justices on children and youth issues, Aboriginality, family violence, mental illness and cognitive disability, homelessness and substance dependence (Recommendation 28)

· a new Bail & Remand Court be established at the Magistrates’ Court. This would replace the current Night Court and Weekend Court and would sit in two courts, in two shifts from 9am-10pm and would cover the entire state.

· if the new Court is established, all headquarter police stations be equipped with audio visual links to enable swift bail hearings with an accused in custody by the Bail & Remand Court (Recommendation 29)

· once the Bail & Remand Court is fully operational, senior police members would be able to remand accused adults overnight, and bail justices be retained for matters such as out of hours bail applications for children and vulnerable adults (Recommendation 29)

· Bail Act 1977 be comprehensively overhauled and rewritten to enhance its structure, readability and consistency (Recommendation 37)

Victorian government’s response to the Coghlan review

The Victorian government indicated at the time that it would adopt each recommendation in the first report and it appears to have implemented many with the passage of the Bail Amendment (Stage One) Act 2017.

However, further consultation with relevant agencies and community groups on longer-term recommendations outlined in the second report are to be undertaken before any further changes are implemented. It is understood a second Bill will be introduced later this year into the Victorian Parliament, which will address the more complex matters and recommendations of the second Coghlan report. The Premier, Daniel Andrews, said that the recommendations in the second report affected the whole bail system and required careful consideration.

A band-aid solution

Police Association Secretary, Wayne Gatt, welcomed the move towards simpler new laws, while the Victims of Crime Commissioner Greg Davies has said that the proposed reforms were “certainly an improvement.”

However, Opposition Leader Matthew Guy has slammed the proposed changes, saying that they “appear simply cosmetic” and are “too small and too weak.” Mr Guy believes the system needs a cultural overhaul which would elicit fear within offenders.

In our view, while the implementation of Mr Coghlan’s recommendations is a positive step forward, the reforms to this point just seem to be a band-aid solution.

Retention of bail justices and limiting the scope of their role may continue to ease the burden on courts and police but it does also mean that mistakes will inevitably occur. If bail justices are to be retained they should be legally qualified and undertake far more rigorous training before being permitted to make a decision about whether to grant bail.

Serious offenders will no doubt continue to slip between the cracks and the legislative changes will not deter offenders from committing offences whilst on bail.

Conclusion

Not much has been achieved to allay community concerns that the bail system remains heavily skewed in favour of serious offenders. Law reform is never an easy task, but far greater effort and education are needed to strike a proper balance between the ‘entitlement’ to bail and maximising community safety.

Only time will tell if these reforms are anywhere near effective enough to keep Victorians safe.

Further Information

Bail Review reports and the Victorian government’s response are available here.

What do you think? Are the proposed recommended reforms to the bail system sufficient to protect Victorians from serious offenders? Let us know in the comments!

Australia could have Commonwealth legislation regarding image-based abuse, or “revenge porn,” by the end of this year, but it will not be criminal offences.

Distributing intimate images of your ex-partner is a vile act. But it is continuing to happen at an alarming rate in Australia. The latest high profile case is that of Rob Kardashian posting images of his wife Blac Chyna. Even after his Instagram account was taken down, he carried the abuse to Twitter.

The University of Sydney has also found itself embroiled in a Facebook scandal with images being shared in a closed group for men to view, rate and harass victims.

It is widely accepted among state and territory governments that this behaviour is wrong and needs to be prevented but an agreement on how cannot be reached.

Federal Government’s Civil Penalties Scheme

The Government released a discussion paper in June 2017 on a proposed civil penalties scheme which would provide remedies such as fines, enforceable undertakings, take down notices and injunctions. The scheme could also give the current Children’s eSafety Commissioner more power to remove or limit the distribution of images flagged through the online complaints portal due to launch later this year. The Commissioner’s role was expanded in November last year to include combatting image-based abuse.

The discussion paper comes over a year after the Senate Inquiry released its report and recommended the Government establish offences to criminalise image-based abuse that are consistent with those already in existence at a state level. The Senate also recommended empowering a Government agency to issue take down notices and implement an awareness campaign to complement the offences.

Despite these recommendations, private members’ bills introduced in October 2015 and October 2016 proposing criminal sanctions were never debated and are no longer before the house.

The federal Government has been adamant in its opposition to imposing criminal sanctions on revenge porn. This is despite recommendations for offences to be implemented from women’s legal services across the country, the Commonwealth Director of Public Prosecutions,’ and academic experts. The Council of Australian Governments Advisory Panel on Family Violence against Women and their Children also recommended federal legislation in their final report, stating perpetrators should be made accountable for their actions.

State approach

Victoria and South Australia

Currently, Victoria and South Australia have laws against the non-consensual sharing of intimate images, also known as “up-skirting”, “down-blousing”, “sextortion” or “revenge porn”.

New South Wales

On 27 June 2017, New South Wales Parliament passed the Crimes Amendment (Intimate Images) Bill 2017 which creates a new offence for a person to intentionally record or distribute, or threaten to record or distribute, an intimate image of another person without that person’s consent.

People who record or share intimate images without consent could be jailed for up to three years and fined as much as $11,000 under tough new laws.

NSW Attorney General, Mark Speakham said:

This activity is a form of abuse that can cause significant distress to victims. This Bill will empower victims and provide them with the legal right to ensure that perpetrators can no longer get away with such disgraceful behaviour. Behaviour between consenting parties will not be criminalised. Instead, victims will be enabled to take a stand against privacy abuse.”

The new legislation makes it an offence to threaten to record or distribute intimate images, providing victims with additional protection against controlling or coercive behaviour which can occur in abusive relationships. If an offender fails to take reasonable action to ‘take down’ the material, they could face an additional two-year jail sentence and a $5,500 fine. The legislation also gives the courts the power to issue ‘take down’ notices.

One of Australia’s leading experts in sexual violence, Dr Nicola Henry of RMIT University, said:

The NSW legislation is an excellent model that can serve as an inspiration for other jurisdictions both in Australia and internationally.”

Australian Capital Territory

Last week, the ACT passed legislation modelled on Victorian legislation criminalising the sharing of intimate images without consent, but including an exception for persons under the age of 18 years.

Western Australia

Western Australia has opted for a civil approach and made changes to allow victims of image-based abuse to seek a family violence restraining order.

Widespread image-based abuse in Australia

All this comes as new research by RMIT and Monash University indicates that one in five Australians has suffered image-based abuse. Researchers surveyed 4200 Australians and found that the abuse covered more behaviours than expected.

This isn’t just about ‘revenge porn’ – images are being used to control, abuse and humiliate people in ways that go well beyond the ‘relationship gone sour’ scenario,” Chief Investigator, Dr Nicola Henry said.

In the RMIT report, the following statistics highlight the full extent of the problem: one in three people aged 16 to 19 years, and one in four aged 20 to 29 years, reported at least one form of image victimisation. 22 per cent of women and 23 per cent of men, were equally likely to be victimised. 56 per cent of people with a disability and 50 per cent of Indigenous Australians have been victims of image-based abuse. People who identify as lesbian, gay or bisexual were more likely to be victims (36 per cent) than heterosexual people (21 per cent).

Eighty per cent of people who had experienced “sextortion” reported high levels of psychological distress, consistent with moderate to severe depression and/or anxiety disorder. 46 per cent also felt highly fearful for their safety. Moderate to severe depression and/or anxiety affected 75 per cent of victims whose images were distributed and 67 per cent of those whose images were taken without consent. Thirty-nine per cent of people whose images were distributed and 28 per cent of those whose images were taken without consent felt highly fearful for their safety.

The research proposed the need for law reform to address inconsistent legislation across Australia, suggesting a crime be created under federal telecommunications law.

Such federal criminal legislation would also bring Australian law in line with international standards, with the UK, Canada, New Zealand and most US states criminalising image-based abuse.

The UK has also put in place a helpline for victims.

So why only a civil penalties scheme?

The federal Government has said that the proposed civil scheme is a result of feedback from victims and the organisations that assist them. Criminal proceedings are thought to be too slow to provide victims with remedies. Minister for Women, Michaelia Cash, said in November when announcing consideration of a civil penalties scheme:

Many of them say to you, ‘All I wanted was the image removed, I just wanted the image removed’”

A civil scheme would allow the eSafety Commissioner to investigate sites that are displaying intimate images obtained without a victim’s consent rather than just punishing the offender.

However, a civil penalty scheme would fail to address inconsistent revenge porn legislation across Australia. Many submissions to the Senate inquiry have suggested that federal legislation is needed to address different jurisdictional approaches. 

At a meeting of Attorney Generals in May this year, a national statement of principles was agreed to assist in creating a consistent criminal and civil legislative framework. The principles provide guidance on the scope of any criminal offences as well as addressing the issues of consent and harm to the victim.

Impact on victims

In most cases, image-based abuse causes serious and ongoing psychological trauma to victims and their immediate family and friends.

After ending a relationship, a Western Australian woman’s ex-partner posted a number of intimate images and videos to his Facebook account that had been taken over the course of their relationship. The intention was to inflict mental harm, distress, humiliation, loss of self-esteem and embarrassment as a result of her decision to end the relationship. He went on to taunt her through text messages about his uploads and eventually removed the post 7 hours after first publishing it.

The incident occurred in August 2013 but the final hearing did not take place until January 2015.

The victim, in this case, sued for breach of confidence, an equitable doctrine. Due to the psychological trauma suffered, she was not able to return to work for 10 weeks and lost $13,000 in wages. The court, in this case, awarded $13,000 in lost wages and an additional $35,000 in damages for pain and suffering.

The victim also obtained an injunction preventing the potential future distribution of intimate images.

Almost 2 years after the incident, the perpetrator was required to pay $48,000. While this example is a good civil outcome, it certainly hasn’t slowed the explosion of revenge porn in Australia or acted as a deterrent to other perpetrators who maliciously post intimate images of others online without their consent.

This is why consistent federal criminal legislation that imposes serious penalties on perpetrators of revenge porn is urgently required in Australia.

Criminal v civil offences

When it comes to the dissemination of intimate images of another person without their permission, there are benefits and drawbacks associated with civil or criminal penalties.

Some argue that given the far-reaching, destructive and deeply personal impact revenge porn has on victims, that many do not make police reports. This makes criminal prosecutions difficult for law enforcement to pursue. On the other hand, civil litigation can be a drawn out, costly and traumatic exercise for victims. At best, the only remedies a victim can expect from a civil suit are damages and perhaps an injunction preventing further distribution of their intimate pictures.

Conclusion

Our current approach to revenge porn sees state laws working at a different pace to federal legislation. Regardless of what scheme achieves the best outcome for victims of this disgusting and spiteful behaviour, the inconsistency of Australia’s revenge porn legislation is the first issue that needs to be addressed to curb this widespread problem.

Further Information

If you, or someone you know, is a victim of revenge porn contact:

• eSafety Commissioner
• Australian Cybercrime Online Reporting Network (ACORN)
• Local police assistance line: 131444
• National Counselling Helpline: 1800 737 732 (for assistance and practical strategies on how to cope with the ongoing effects of revenge porn)

More on BucketOrange Magazine

• Should It Be Considered A Sex Crime If It Happened Online? The Pathology Of Revenge Porn
• Google Removes Revenge Porn From Search Results
• Time For Reform: A Growing Need For Proper Regulation Of Online Sexual Harassment

The Global Slavery Index estimates that 45.8 million people worldwide are subjected to modern slavery practices with 4,500 people currently trapped in some form of exploitation in Australia. Slavery includes human trafficking, debt bondage, and forced labour.

Accordin to The Hon Michael Keenan MP:

These are grave violations of human rights and serious crimes with devastating impacts. They have no place in our community or in the supply chains of our goods and services.”

The proposed reporting requirement will require large corporations and other entities (with an annual turnover of at least $100 million) operating in Australia to publish annual Modern Slavery Statements outlining their actions to address modern slavery in their operations and supply chains. The Statements will be published on company websites and in a publicly accessible central repository.

At this stage, however, punitive penalties for non-compliance are not being proposed. This means that public accountability and criticism is the only measure that will be used to ensure companies are not complicit in modern slavery practices.

How effective this approach will be remains to be seen.

Further Information

The deadline for submissions is 20 October 2017 and can be found on the Attorney-General’s Department website.

The Criminal Justice report released today recommends a number of important and necessary legislative and policy changes, including reform to police and prosecution processes, evidence of complainants, sentences and appeals, and grooming offences.

It also recommends new offences, including ‘failure to report’ and ‘failure to protect’.

A snapshot of key recommendations for law reform

Sentencing standards in historical cases

That all states and territories introduce legislation so that sentences for child sexual abuse offences are set in accordance with sentencing standards at the time of the sentencing, instead of at the time of offending. The Royal Commission recommends that the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.

The reason for this is that many survivors of institutional child sexual abuse do not report the offence for years, and sometimes decades after the abuse. Applying historical sentencing standards can result in sentences that do not align with the criminality of the offence as it is currently understood.

Tendency and coincidence evidence and joint trials

That law reform allows greater use of evidence by multiple victims in relation to a single perpetrator. This is known as tendency and coincidence evidence and joint trials.

The Royal Commission found that there have been unjust outcomes in the form of unwarranted acquittals because of the exclusion of tendency or coincidence evidence.

Grooming children and those around them

That legislation is introduced or amended to adopt a broad grooming offence that captures any communication or conduct with a child with the intention of grooming the child to be involved in a sexual offence.

The Royal Commission recommended that governments introduce laws to extend their grooming offences to the grooming of persons other than the child, such as a parent or carer, for example, by giving a perpetrator access to the child. The outcome of such reform would be to help to protect the child and recognise that grooming behaviour can also harm those who care for the child.

Failure to report and the religious confessional

One of the most significant recommendations made in today’s report is to recommend that failure to report child sexual abuse in institutions is a criminal offence. The recommendation extends to information given in religious confessions. The Royal Commission found that clergy should not be able to refuse to report because the information was received during confession.

Persons in institutions should report if they know, suspect, or should have suspected that a child is being or has been sexually abused.

The Royal Commission heard of cases in religious settings where perpetrators suffering guilt sought forgiveness by making a religious confession to sexually abusing children and then went on to re-offend. The report recommends there be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in connection with a religious confession.

Failure to protect a child within an institution

The report recommends that failure to protect a child within an institution from a substantial risk of sexual abuse by an adult associated with the institution should be made a criminal offence.

The Commission heard of many cases where perpetrators were moved between schools and other sites operated by the same institutions when an allegation against them was raised and who continued to abuse children in new locations.

The Royal Commission found that all states and territories should introduce a ‘failure to protect’ offence with legislation already introduced in Victoria providing a useful precedent.

Our thoughts

As the Royal Commission found, where allegations against clergy are made, perpetrators are moved between schools or other sites and incidents involving children disclosing abuse at confession have gone unreported. Given the ubiquitous nature of abuses suffered by children and other vulnerable victims at the hands of perpetrators in institutions such as the Catholic Church, it is unclear what measures will be taken to implement the ‘failure to report’ or ‘failure to protect’ recommendations and how they will effectively be enforced.

Unless strong legislative action is taken by governments, it seems likely that sexual abuse will continue to occur, as it has for decades, and that there will be even more opportunity for such heinous and sickening abuses of power to not only continue but also remain hidden behind the veil of institutional walls.

Further Information

To read the full report visit the Royal Commission into Institutional Responses to Child Sex Abuse.

For decades, models that are ‘too thin’ have hidden in plain sight in the fashion industry on catwalks and magazine spreads. Recently, France joined the likes of Italy, Spain and Israel in implementing legislation that aims to regulate the fashion and media industries and to promote positive body image by banning unhealthily thin models.

Since May this year, French models have been required to provide a doctor’s certificate as evidence of their overall physical health, the key metric being a healthy body mass index (BMI). Modelling agencies that break the law by employing models whose weight falls below the required minimum can face a fine of €75,000 and a jail sentence of up to six months. An earlier draft of the legislation went one step further, establishing a set minimum BMIs for models but this was abandoned after an outcry from modelling agencies. Now, doctors are in a position to determine a healthy weight for models based on individual weight, height, age and body shape.

An international response to France’s legislation

France’s new legislation has inspired debate in other countries about how the fashion industry should be regulated with respect to the health of models.

Many experts in Australia have raised concerns about our Voluntary Industry Code of Conduct on Body Image (the Code), which permits the industry itself to determine what constitutes a ‘healthy’ model.

While the Code stipulates that models should be “clearly of a healthy weight”, its voluntary nature means that the industry’s wallet, rather than metrics of health and well-being, have been allowed to dictate Australian beauty standards for decades.

Modelling agencies don’t exactly make a habit of employing medical professionals, so why should a few key unqualified individuals be left to determine what constitutes a healthy, or indeed a beautiful, body?

France’s new legislation has divided academics in the field, with some commentators suggesting that it is a legislative overreach. Some of those against introducing similar legislation in Australia have instead suggested that the Code be made compulsory. The extent of the difference this would make is debatable, and little has been done to develop the proposal – what, if any, enforcement mechanisms would be established? How would compliance be monitored?

Given the psychological impact of being bombarded by images of models with unattainable weights and body types – particularly where images have been digitally retouched – not to mention the physical and mental harm that models inflict on themselves in an effort to live up to such an ideal, this issue is too important to be left under the purview of those who have a vested interest in maintaining such unrealistic standards. Just hearing the shocking reports about models eating tissue paper and cotton wool to reduce their weight and secure work should be enough to galvanise any government to take action.

Is a BMI the best metric to be using?

Using the BMI as an indicator of physical health is not without controversy, even outside this context. It has frequently been known to misclassify people and was not designed to be used at an individual level. Some have argued that using a BMI as the sole indicator of suitability to work discriminates against ‘naturally thin’ models. Others still have argued that it fails to consider other relevant factors such as age, bone density, and muscle mass.

Models have also been known to cheat the system, adding weights to their hair to influence their BMI. Even models that have a ‘healthy’ BMI may appear to the average person to be ‘too thin’.

Psychological impact on everyday Australian women

The depiction of unhealthily thin models in the media is a serious problem that extends far beyond the fashion industry and those working in it.

According to Marylin Krawitz:

Media images showing models who are unhealthily thin or who were photoshopped can damage women’s psychological health because women may believe the images depict reality. Photographs of very thin people in the media can amplify women’s dissatisfaction with their own bodies even if they are highly accomplished in other aspects of their lives. Women may believe that the models’ figures in the photographs are typical, when they are not. Seeing these images can lead some women to start dieting and to develop eating disorders.”

According to Eating Disorders Australia, approximately 9% of the general Australian population suffers from an eating disorder with the social and economic cost of eating disorders in 2012 alone estimated to have reached $69 billion.

When it comes to youth body image, Mission Australia’s 2016 National Youth Survey found that Australia is moving backwards. For seven consecutive years, young Australians identify body image as one of their top three personal concerns. The trend has increased from 20.4% in 2012 to 30.6% in 2016 highlighting the need for body image to be recognised and acted upon as a national priority.

According to the Butterfly Foundation, poor body image can be a precursor to serious eating disorders, particularly for young people experiencing mental health issues who are 55.4% more likely to be concerned about body image than someone without a mental imbalance.

But staggering statistics surrounding negative body image are not isolated to young women. A report commissioned by Dove in June 2016 surveyed women aged between 10 and 60 years of age in 13 countries found that 89% of participants cancel plans, job interviews or other important events just because of how they look.

Study participants also listed growing pressure from the media and other sources as contributing to body image problems. 77% of Australians cite “unrealistic standards” set by the media, advertising and fashion industries as one of the biggest contributing factors with 1 in 2 Australian women feeling worse about themselves after looking at images of models in magazines.

Of the countries surveyed, Australia came in with the third worst body image rates (even ahead of the US at 24%), with only 20% of research participants claiming to experience positive body image.

Low body confidence is a serious health problem for Australian women

Last month, the potentially deadly consequences of negative body image and related eating disorders was brought into sharp focus when 18-year-old Rebecca Gallagher was found dead in her University of Sydney dormitory. She had suffered complications associated with anorexia nervosa.

University of Melbourne Researcher, Marie Camin told the Sydney Morning Herald:

Communal living, rigid meal times, and the college culture of sexual objectification could exacerbate eating disorders which affect up to one million Australians, according to a report from Deloitte Access Economics and The Butterfly Foundation. If these girls have those risk factors to begin with and are exposed to a critical appearance focused culture it can serve as a trigger.”

The mortality rate for people who experience eating disorders is the highest of all psychiatric illnesses and over 12 times higher than the mortality rates of people without an eating disorder.

Lack of regulation is exposing Australian women to unnecessary risk. What is the government doing about it?

One 2011 study found that just one in seven Australian magazines fully complies with the Code, although most comply with part of it. Data in this area is pretty scarce, and there are very few other studies tracking the impact of the Code. Anecdotally, one magazine editor did actually inquire about the health of one of the models Alex Perry used at the 2014 Australian Fashion Week.

The most significant (and unfortunately, the most recent) government action in this area was taken up by the Labor Government back in 2009 when the National Advisory Group on Body Image saw the introduction of the Code which encouraged the media and fashion industry not to photoshop models to look “unrealistic and unattainable.”

However, Mia Freedman, who chaired the National Advisory Group that devised the Code in 2009, has noted that it has not been widely implemented and is not being followed.

More recently, the current government expressly rejected the idea of introducing similar legislation to France with the Minister for Women, Michaelia Cash, saying that responsibility lies with the industry and not with legislators. 

Might it take the death of two supermodels from eating disorders like it did in Madrid for the government to wake up to the severity of the problem? How much more does the health of Australian women need to suffer for the government to recognise there is a problem?

As Marylin Krawitz notes in the Journal of Law and Medicine, it’s a situation not dissimilar from government regulation in other preventable health-related areas. Just like cigarette advertisements, exposing the public to magazine covers and billboards that idealise unhealthily thin bodies unnecessarily encourages unrealistic and destructive eating, lifestyle and mental health habits.

Urgent need for legislative reform 

In January 2013, Israel implemented legislation referred to as the “Photoshop law” which requires models over 18 years of age to have a BMI of 18.5 or over. France will also require photoshopped images to be labelled where an image has been modified from 1 October 2017.

Elsewhere, a crack down in London in 2016 saw a ban on advertisements on public transport that could pressurise the public to conform to unhealthy or unrealistic body images, while Norway has taken similar action.

Australia is embarrassingly and inexplicably lagging behind international standards.

A way forward

It’s clear that the fashion industry will not change its destructive practices without mandatory government intervention. Independent regulation to facilitate the promotion of healthy body image and achievable beauty standards is required.

New legislation needs to adopt a holistic approach to the health and well-being of models that goes beyond a generic BMI test. Promoting healthy bodies is important, but so is nurturing healthy minds in an industry notorious for pressuring models to conform to unattainable beauty standards. From a public health perspective, at a minimum, it’s time that the media, advertising and fashion industries are required to disclose images that have been digitally altered (in print and social media) and to commit to promoting body images that reflect reality, not fashion fiction.

Valued at $28.5 billion dollars, giving the Australian fashion industry the continued freedom to ‘self-regulate’ when it comes to women’s health is akin to leaving a two-year-old home alone with instructions not to run with scissors: dangerous and grossly irresponsible.

Further Information

According to the Economist, betting losses per resident adult in 2016 amounted to $1292 last year. That is 40% higher than Singapore, which suffered the second biggest losses and double the average in other Western countries. In stark comparison, Las Vegas lost half this amount.

Pokies are still, and have always been, a recognised problem and almost half of Australia’s gambling expenditure can be attributed to the ‘slots’. This is because bet sizes are much higher than other markets, allowing punters to lose as much as $1,150 per hour.

However, the emergence and unprecedented growth of the online betting industry, including sports betting (which grew a massive 30% from 2014 to 2015), is such that on current predictions, within 10 years, sports betting will overtake the pokies as the biggest form of gambling in Australia.

Getting in the face of gamblers

According to the Federal Department of Social Services:

Online gambling is the fastest growing gambling segment, growing at 15% per annum, with over $1.4 billion gambled online each year. Digital technology is also enabling illegal operators to reach our phones, our televisions, our home computers at any time of the day or night.”

So, what factors are driving this major increase in online gambling and sports betting? Look no further than advertising.

Sports betting, in particular, has never been so easy, or so attractive. Online bookmakers like Tom Waterhouse and Sportsbet pour millions of dollars into advertising each year, including incentives for opening an account, to entice new and regular punters.

While 2012 saw $68.7 million spent on gambling adverts, in 2014 this spending rose to $149.1 million.

The speed and ease of betting on smartphone apps, live betting as well as the hundreds of bonus bets and refund promotions run by gambling agencies, it comes as no surprise that more and more Australians, particularly young men, are persuaded to grab their credit cards and sign up for the latest Sportsbet, William Hill, and Ladbrokes deals.

An estimated 500,000 Australians are at risk of becoming problem gamblers with the social cost of gambling estimated to be 4.7 billion.

Targeting a new generation

Betting agencies and major online bookmakers carefully tailor marketing techniques to appeal to a new generation of potential gamblers, moving away from gamblers likely to head towards the slots. Many agencies now focus on sports betting with a specific focus on younger generations (specifically adolescent males), to create what has been described by some commentators as the ‘gamblification of sport’.

The trend has seen an increasing number of vulnerable and impressionable young men grow up in an environment of constant exposure to embedded gambling advertising.

Showing sports betting advertisements before, during and after popular sporting events makes the euphoric feelings experienced when watching favourite sporting idols win synonymous with gambling.

It’s a highly addictive cocktail of hormones, adrenalin, endorphins and the potential to win a lot of money quickly – and it’s exactly why it is a winning recipe for betting agencies.

Viewers learn and are arguably indoctrinated about gambling through favourite sports programs. Such advertisements are often strategically shown at critical points of matches when audiences are most attentive. Many advertisements are also displayed on player uniforms and across sporting venues.

The outcome of this frequency of sports betting advertising is leading to a normalisation and legitimisation of gambling as harmless and skilful fun (not unlike sport). Increasingly, sports betting is regarded by young Australian men as a ‘key part’ of enjoying and engaging in the excitement of live sporting events.

Marketing campaigns of this kind have been described as both predatory and unacceptable by Tim Costello, the chairman of the Australian Churches Gambling Taskforce, as they have already seduced many young Australians with their high potential to create a new generation of problem gamblers.

With the risk that sports betting is becoming ‘normalised’ and mainstream, should gambling advertising be better regulated to protect the community? What is the current position?

Last month, the Turnbull government banned gambling ads five minutes before the start of a match until five minutes after the end of a match, and before 8.30pm. The changes are part of a hotly contested package of media reforms designed to combat gambling in Australia.

However, major bookmakers are savvy and already finding loopholes and other mechanisms to advertise online, such as through advertorials on websites. You don’t have to be on the internet for long to discover their presence as they are now even seeking out sponsorship arrangements with online magazine publishers.

There has been little success in restricting the booming sports betting industry. In 2013, the Federal government looked into the regulation of sports betting by conducting three inquiries. These inquiries have had little impact, other than amendments made to the Broadcasting Advertising Codes, resulting in the prohibition of in-match commentary on, and on-screen displays of, live betting odds.

Other promotional practices continue to flood Australian TV screens throughout major sporting events.

What else can be done to ensure better regulation and protection for the community?

Granted this is a contentious issue as the state governments receive a substantial amount of revenue from gambling tax. However, community concern is rising, and many Australians are looking to the Federal government to make legislative changes to limit sports gambling and advertising and to adopt better, national regulation methods.

It has been suggested that larger penalties should be imposed on gambling service providers, particularly when they engage in this kind of ‘predatory advertising’. Other suggestions have been to increase the number of warning messages featured within gambling advertisements as well as to place restrictions on the use of advertising on player uniforms.

As mentioned earlier, Australians lose more money gambling per person than any other nation globally. Australians are not winning from sports gambling nor its advertising. Isn’t it time the Federal government stepped in and responded to increased community concern?

But let’s be clear, here. Genuine sports lovers are not focussed on making money out of their desire for a particular result in a match or other major sporting event. Their interest in sport is for sport itself and not to make money out of that sporting interest. That being said, both sport lovers and as well as everyone else in the community are being targeted by betting agencies to part with their money.

High social costs of gambling

The social costs of gambling are devastating and are capable of destroying the lives of many Australians. Ramifications include personal relationship and family breakdown, loss of employment, bankruptcy, depression, suicide and criminal activity. The human costs are high but the damage to the economy is also significant.

In April this year, the Federal government reached an in-principle agreement with state and territory Ministers to introduce broad reforms to provide stronger consumer protections in online gambling. Ministers agreed that the current level of gambling advertising is not liked or desired by the broader community.

Ministers noted the Commonwealth Government is actively considering this issue. However, while the Federal government has certainly expressed a desire for greater national consistency in advertising of online wagering services, it has been surprisingly slow to actually do something positive.

It was noted at the Ministers’ meeting that:

Online gambling is the fastest growing gambling segment with rates of problem gambling three times higher than in other gambling segments.”

The Ministers did agree on “key principles underpinning eleven measures to better protect Australians’ gambling online”. Importantly, among other things, it was agreed that there would be a prohibition of lines of credit being offered to punters by wagering providers.

Ministers also agreed to the establishment of a national gambling research model commencing 1 July this year with a $3 million investment by all governments. The Commonwealth will contribute a mere $1.35 million.

Several of these eleven measures could be implemented by the end of this year but, apart from appropriate future legislative measures.

At the very least the government should actively run television, radio and online campaigns aimed at the broader community, not just sports lovers.

Such campaigns could proactively discourage inappropriate online sports gambling just as the government has with other major social issues such as the ice epidemic, skin cancer awareness, anti-smoking, suicide awareness and active living campaigns.

To put it in perspective …

Many of us are guilty of heading to the local club, hotel or even the casino to try our luck at the pokies. But sports betting is a much bigger and much more dangerous social issue. With accessibility 24/7 on our smartphones, tablets or PCs as well as advertisements flashing on our screens and plastered on sports stars’ uniforms, it’s an industry that is not only a threat to the community but also what we perceive as ‘normal’.

Further Information

If you, or anyone you know, needs help with a gambling addiction contact:

• Lifeline on 13 11 14
• Mensline Australia 1300 789 987
• Suicide Call Back Service on 1300 659 467
• Beyond Blue on 1300 22 46 36
• Headspace on 1800 650 890
• Gambling Help Online ACT on 1800 858 858; TTY 1800 777 706 for a free 24-hour anonymous counselling referral service
• Relationships Australia
• Lifeline Problem Gambling
• Mission Australia Gambling Hotline on 1800 858 858
• Gambling Help NSW

It was a sensational victory not only in the fight against human trafficking but also in raising awareness around the importance of everyday people being informed, conscious of their surroundings and proactive in helping to identify and report victims of modern slavery.

As incredible as the story is, it also raises some serious questions about what steps, if any, are currently being taken in Australia to combat human trafficking through common transport routes such as aeroplanes.

Importantly, it also raises the issue of whether flight crew should be considered ‘frontline officials’ for the purposes of high-level human trafficking training.

Human trafficking training for flight attendants

In the United States, flight attendants play an important role in combatting human trafficking. The actions of flight crew often prevent victims ever arriving at their intended destination.

After seeing an 18-year-old carry a newborn baby (with the umbilical cord still attached) onto a flight, attendant, Sandra Fiorini, realised that there was a real need for flight crew to be trained in detecting and responding to suspected cases of human trafficking. She wanted to report the incident but did not know how. So she joined forces with the organisation Innocents at Risk to develop the ‘Flight Attendant Initiative,’ a program designed to educate flight attendants in identifying and reporting suspected victims of trafficking or slavery.

Since then, organisations such as Airline Ambassadors have educated flight crew in detecting and responding appropriately to trafficking not only in the United States but also in Europe and countries such as Colombia and Hungary. Airline Ambassadors also created an app called Tip Line which supplements this training by allowing users to record audio and video, take photographs and send evidence to relevant authorities. They work with the Department of Homeland Security and US Customs and Border Protection to develop programs for airline personnel.

The Blue Lightning Initiative, which is led by the Department of Homeland Security, Customs and Border Control, and the Department of Transportation, is an element of the DHS Blue Campaign, which is a key U.S. human trafficking training program. The Blue Lightning Initiative trains airline personnel to identify potential traffickers and human trafficking victims and to report their suspicions to federal law enforcement.

In 2013, Delta Airlines became the first airline to begin training all staff about human trafficking.

In the U.S. in July 2016, new laws were made. The FAA Extension, Safety and Security Act of 2016 was signed by President Obama which requires air carriers to provide initial and annual training for flight attendants in recognising and responding to potential human trafficking victims. Becoming a Blue Lightning Initiative partner and using the virtual training is a simple and effective way for airlines to adhere to the new requirement.

Elsewhere, Europe is also moving toward the implementation of training for flight crew. An amendment to the Action Plan to Combat Trafficking in Human Beings from the Organisation for Security and Co-operation in Europe (OSCE) recommended the training of:

personnel employed by various commercial carriers, in particular, airline attendants and staff working on other means of transportation by land and sea, aimed at the identification of trafficked persons, as well as the introduction of measures designed to prevent [human trafficking], including co-ordination between commercial carriers and the State law
enforcement agencies or through other appropriate mechanisms.”

Implementation of recommendations made by the OSCE is, however, made on a political and not legally binding basis. There are currently 57 participating states across Europe, Central Asia and North America.

How Australia deals with human trafficking

Human trafficking is a serious problem that affects every country in the world. Given the far-reaching and damaging repercussions human trafficking has on a global scale, Australia’s current anti-trafficking measures are, in many respects, seriously underdeveloped and lacking focus.

In 2011, the United Nations Special Rapporteur visited Australia and produced a report which analysed Australia’s approach to combatting human trafficking. Concerns were raised about Australia’s method of detection which is primarily through immigration raids that occur in brothels. The Special Rapporteur noted that this approach not only limits the detection of trafficked victims to only one sector but also questioned whether interviewing suspected victims about their immigration status, without the presence of social workers, was effective given their fear of deportation.

In 2013, following the release of the report, changes to the Crimes Legislation Amendment (Slavery, Slavery‑like Conditions and People Trafficking) Act 2013 were made and the government implemented a National Action Plan. A spokesperson from the Attorney-General’s Department says:

A key measure of Australia’s National Action Plan to Combat Human Trafficking and Slavery 2015-19 is training of frontline officials, including police, prosecutors, labour inspectors, and immigration compliance and visa processing officers, to recognise and respond appropriately to human trafficking and slavery.”

However, an important deficiency in the National Action Plan is that high-level training in identifying and responding to victims of human trafficking is still something that is limited to ‘frontline officers’ in law enforcement and immigration positions.

The Australian Federal Police is responsible for investigating and assessing human trafficking and slavery matters, both proactively and through referrals from other Australian Government or state and territory government agencies, civil society, business and industry, unions or the general public” says a spokesperson for the Attorney-General’s Department.

While the Fair Work Ombudsman and marriage celebrants (who may come across suspected victims in employment or forced marriage situations) receive some training why aren’t airline staff given similar training by the government or their employers?

Current absence of government anti-trafficking awareness training for Australian flight crew and ground staff is unacceptable

More than 70,000 personnel in the U.S. aviation industry have been trained through the Blue Lightning Initiative, and flight crews continue to report actionable tips to law enforcement.

Unlike the U.S., Australia currently has no law which prescribes anti-trafficking training for flight attendants. The Attorney General’s Department made no comment about whether similar legislation to the FAA Extension, Safety and Security Act of 2016 in the U.S. is proposed for Australia.

While the government currently provides ‘information, guidance and awareness-raising materials’ to the Department of Immigration and Border Protection and the Australian Border Force frontline officials, including those officials working at airports and ports, it does not deliver or require specific training for or by organisations that have exposure to victims of human trafficking and modern slavery. Any training that deals with aviation safety must comply with Civil Aviation Safety Authority (CASA) regulations. When contacted for comment, the Authority’s response was that they do not regulate security on flights.

Staggeringly, as far as reporting suspected victims of human trafficking is concerned, the government does not require any accountability from airlines which are extremely well placed to observe potential victims.

The Australian Government is committed to monitoring and refining the existing tools and guidance used by frontline officers for the identification of suspected victims of trafficking and slavery but does not currently deliver or require specific training for airline staff on this issue. The Government delivers regular training on human trafficking to police and other frontline officials, and has developed a range of guidelines, fact sheets and other publicly available materials aimed at raising awareness” a spokesperson for the Attorney-General’s Department said. 

It’s a position that is disappointingly limited and at odds with the National Action Plan which aims to proactively ensure that all cases of suspected human trafficking are identified and reported.

Considering the proven success of U.S. human trafficking training programs for air crew; the positive response from U.S. airline staff who are now able to take an active role in stemming the flow of trafficked victims using air transport routes; as well as the clear benefit to victims who are identified in flight and rescued prior to reaching their intended destination, it is both surprising and disappointing that the government is doing nothing to educate and train Australian flight attendants in proven anti-trafficking measures.

One of the reasons the government has given for not taking a more active role in the management of human trafficking to date is that:

Compared to other jurisdictions such as the United States and Europe, Australia has a comparatively low number of victims of human trafficking and slavery” a spokesperson for the Attorney-General’s Department said.

However, the Special Rapporteur expressed concerns with this approach in her report as the figures of identified victims ‘may under-represent the true number of trafficked persons in Australia’ due to reliance on compliance raids to identify victims.

The eyes are useless when the mind is blind 

While the report noted that no victims had been identified in airports in Australia, it goes without saying that a low level of identified victims does not establish that Australia experiences low levels of human trafficking or modern slavery.

On the contrary, low levels of ‘identified’ victims prove only that – that there has been a small number of ‘identified’ victims in Australia. Where airline staff, who are in a position to make a difference, are not given training there is huge potential for traffickers to move faceless unidentified victims past key ports with relative impunity.

The current see nothing, do nothing approach runs the very real risk that a large number of victims will continue to fall through the cracks on primary trafficking routes and key checkpoints.

As proven by the U.S., airline staff – both ground and air crew – have a critical role to play in combating human trafficking as they have direct face-to-face contact with victims and, in the case of flight crew, have many observation opportunities.

Given their client-facing role and unique position to detect potential traffickers and victims (particularly on long haul flights), Australian flight attendants need to be considered similarly to ‘frontline officials’ for the purposes of targeted and robust anti-trafficking awareness training introduced by the Australian government.

In the absence of mandatory government training programs, it is also time for airlines to step up and train their staff in anti-trafficking measures. As there is no legislative requirement to undergo training, nor active education of carriers in their responsibilities to assist in the combat of such crime, any programs spearheaded by an airline would be the sole responsibility of that airline and provided on a voluntary basis.

The government says that everyone has a role to play in identifying trafficked victims and ensuring that those who are most likely to come in contact with suspected victims have the skills to identify and respond appropriately. Anti-trafficking training for flight crew is not only an obvious but also a critical element in the detection and prevention process. 

In many ways, Australia’s current state of willful blindness is worse than ignorance because it is a refusal to face the truth rather than just a lack of knowledge.

Conclusion

Human trafficking is an issue involving people movement.

Victims are transported across borders and often moved across the world. It is an international problem that requires a unified and coordinated response among nation states. To be responsible members of the global community, to ensure the continued safety of persons entering or leaving Australia, or crossing borders on international flight paths, we need to face the growing international problem of human trafficking head on.

Flight crews are in a unique and powerful position to make a positive impact in combating human trafficking. It is essential that they are considered as complementary to the work of ‘frontline officials’ and given appropriate training.

With the International Labour Organisation predicting that globally there are 20-million people living in circumstances of forced labour, 9.1 million of whom have been trafficked, there is a very real chance that you may be sitting next to a victim of human trafficking on your next flight. Will your flight crew notice or, if you do, would you know what to do?

*Qantas and Virgin Australia did not respond to a request for comment about what action they are taking to train their staff in human trafficking awareness.

Further Information

Anti-Slavery Australia has developed an online training course to raise awareness around human trafficking. It was launched in 2014 and is funded by the Australian Government through the Proceeds of Crime program. The training course has been ‘developed for frontline workers from community organisations, government, teachers, health care professionals and law enforcement.’

What do you think? Should Australian airlines be doing more to proactively manage human trafficking? Let us know below!

Personal safety is a fundamental human right.

But how safe can we feel when potentially dangerous criminals are wrongly released on bail? The increasing frequency of terrorist-inspired attacks leaves many of us fearing that at any given moment a criminal who should, by most people’s standards, be in jail could be roaming the streets and ready to harm innocent people.

The recent attacks in Stockholm, Sweden and Westminster Bridge, London – where cars were used as weapons to mow down pedestrians – throws into sharp focus our ‘belief’ versus the ‘actuality’ that we all have the right not only to feel safe but also to be safe.

While Victoria’s bail system has been in need of a major shake-up for quite some time, it was the Bourke Street Tragedy in January this year that was the trigger for the Victorian Government to spring into action and announce immediate – if somewhat inadequate – reforms.

Bourke Street tragedy

On 20 January 2017, Dimitrious Gargasoulas had been pursued by police driving a stolen vehicle. Gargasoulas allegedly did burnouts at the Flinders Street intersection before speeding down the Bourke Street precinct where he began deliberately driving into pedestrians. It was not until he had driven towards the end of Bourke Street that he was shot by police. Six people were killed, including a three-month-old baby. Earlier that day, Gargasoulas had stabbed his own brother.

What makes this incident even more appalling is the fact that it was preventable.

Only six days prior to his rampage through the Bourke Street precinct, Gargasoulas had been released on bail. This was granted by an after-hours Bail Justice. Like Man Haron Monis – the person responsible for the Lindt Cafe siege in Sydney in 2014 – Gargasoulas had several prior convictions, including a rape conviction.

Despite police opposition to releasing Dimitrios on bail, the Bail Justice disagreed and released him.

His continued remand in custody would have saved six lives, numerous injuries and incalculable community trauma.

Bail Justices are not equipped to make decisions affecting community safety

Bail Justices have been proven to be grossly ill-equipped to make important decisions impacting community safety. The wrongful release of Dimitrious Gargasoulas is a perfect example.

Disturbingly, Bail Justices are volunteers who possess no legal qualifications. The only requirements are: to be over 18 years of age, to be an Australian citizen, to not insolvent, to complete a Justice of the Peace course and a Bail Justice Training program.

What most members of the public don’t realise is that almost anyone on the street can meet the requirements to become a Bail Justice. Under the Victorian bail system, volunteers with no prior legal experience and minimal training are making critical assessments that impact our day-to-day safety.

Unlike Magistrates who have legal qualifications and many years of legal training and experience in criminal matters, Bail Justices simply do not have the necessary skills and experience required to make critical evaluations about whether to release an accused person on bail.

Magistrates are experienced at making complex risk assessments and making difficult but sound determinations, weighing the full range of factors, that properly inform a correct bail determination. These might include prior convictions, AVO histories and mental health histories. Magistrates understand and appreciate the nuances of the law, that it requires individual analysis and assessment on a case-by-case basis, not only taking into consideration all possible immediate factors but also forecasting the future and possible serious consequences associated with granting bail.

Bail Justices, on the other hand, can be predisposed to operating on the presumption of granting bail in circumstances where they rely mostly on police submissions and what an accused tells them in court, without a full picture of the accused’s background and potential to be a risk to the community. Some commentators have observed that Bail Justices do not fully understand how the Bail Act 1977 operates.

The decision about whether to release someone on bail is an important one with serious implications – it is not an administrative tick and flick situation that can be left to someone with no legal experience.

Another important, but somewhat overlooked, factor influencing the grant of bail is that remand centres and prisons in Victoria are at near capacity, meaning that potentially violent criminals cannot be accommodated and are released back onto the streets.

Blame does not lie with Bail Justices themselves but with a justice system that has negligently placed unqualified volunteers at the centre of decisions that have the potential to seriously compromise community safety.

As we have seen, a system that risks permitting bail to even one accused person, where that person poses a significant risk to public safety (as with the Bourke Street tragedy), in the hands of an unqualified volunteer is a system that is broken.

Need for immediate reform

The Bourke Street Tragedy shone a spotlight on a gaping chasm of deficiencies in the Victorian bail system which dates back to the 1980s.

In response to the incident, Daniel Andrews, Premier of Victoria, immediately announced that a ‘Night Court’ would be established so that qualified Magistrates would hear bail applications for serious and violent offences after hours and over weekends. The Night Court commenced on 27 January.

The Government next announced that there would be a comprehensive review into Victoria’s bail system. The review is being conducted by the Hon Paul Coghlan QC. Mr Coghlan provided his initial advice on legislative reform to the Victorian Government on 3 April 2017.

Any other relevant matters will be reported by 1 May 2017.

The review considered seven specific questions, focussing on legislative and practical reforms “to manage risk and maximise community safety”.

The review’s terms of reference:

• how the necessary balance between protection of the community and the presumption of innocence should be best reflected in section 4 of the Bail Act 1977

• appropriateness of the current tests of exceptional circumstances, show cause and unacceptable risk, and an examination of the offences to which those tests apply

• whether additional offences should be added to the list of offences which place an accused person into the show cause or exceptional circumstances categories

• the way in which other relevant circumstances (for example, a history of prior offending or offences committed while on bail), are considered in assessing whether an accused person should be granted bail

• whether information available for consideration by decision-makers in the bail system is sufficient to properly consider and assess the risks that are posed by accused persons, including those with complex risks, needs and case histories

• the conduct of bail applications out of hours including the role of Bail Justices; and

• whether, in relation to out of hours applications, different rules are required for different types of offences.

Where to from here?

The Bourke Street Tragedy caused a considerable amount of grief, trauma and eroded public confidence in the justice system.

Law reform is never an easy task. It should be conducted in a way that addresses community expectations with speed, diligence and skill to achieve justice and, most importantly, to ensure public safety. People expect that governments will protect them. Since the Bourke Street tragedy, many Australians have questioned “how could something as shocking as this happen in broad daylight in Melbourne’s CBD?” It is, therefore, critical that community protection and victim protection align with community expectations.

The introduction of a Night Court is nowhere near a complete solution to reforming the Victorian bail system, but it is a step forward. Any changes should require bail decisions to always take account of and reflect the paramountcy of community safety.

If this means that serious offenders’ or recidivist offenders’ rights are subjugated to those of innocent members of the community, few Australians would protest this outcome.

In the light of national security issues, it is also important that the presumption towards bail is reversed, especially where the judicial system has proven itself to be deficient in its ability to remove serious threats to public safety in the streets.

Currently, no apparent scrutiny or accountability exists for the outcomes of decisions made by magistrates or Bail Justices, even where those decisions cause a serious threat to the community, allow an accused person to re-offend, harm others or cause death.

Urgent implementation of Justice Coghlan’s recommendations for legislative change is required before another serious offender is released on bail and is given the freedom and opportunity to commit another serious crime.

Further Information

For a BucketOrange breakdown of how the current Victorian bail system operates, click here.

What do you think? Should Bail Justices be in a position to make important decisions that influence community safety? Let us know in the comments!

The State’s most recent efforts this week have been much more successful – the Justice and Community Safety Legislation Amendment Bill (No 3) that passed on the 14th February 2017 amended the Civil Unions Act 2012 to:

allow for the automatic recognition of same-sex relationships that have been formally recognised in other jurisdictions as civil unions under Territory laws”.

Prior to this amendment, same-sex couples who married in another jurisdiction had to register their relationship upon entry or re-entry into the ACT, where heterosexual marriages have always been automatically recognised.

This means while same-sex marriages still cannot be performed in the ACT, the Territory will now recognise those that have occurred in other jurisdictions where such marriages are formally recognised. ACT Attorney-General Gordon Ramsay stated:

The amendments to the Civil Unions Act demonstrate this Government’s commitment to building a Canberra that is progressive, inclusive, and people-centred”.

This is representative of the signalling power that State legislation has, and this is clearly not an area where the ACT Government is going to let the Federal Government drop the ball. As Mr Ramsay further asserted:

Despite this setback, the ACT Government continues to support the recognition of same-sex relationships where possible, and we will continue to advocate for the Federal Government to act on marriage equality.”

These amendments follow the passage of similar legislation in South Australia last year. They were introduced in that State in response to the grief caused when a United Kingdom spouse whose same-sex partner died tragically while the couple were on honeymoon in Australia. The surviving spouse was told that the South Australian death certificate would not acknowledge their marriage, which was recognised in the UK.

The ACT Government is clearly committed to affording as many rights as possible to same-sex couples within the restrictions of Federal law.  In the words of Mr Ramsay:

No one should be made to feel different or lesser because of who they love and we are committed to ensuring that all Canberrans have the ability to express their love and commitment in the eyes of the law.”

The passage of these amendments is not only an important step towards equal recognition but also sends a clear message to the Federal Government that there is a growing impetus behind marriage law reform. Perhaps if more States and Territories make similar legislative changes, the Federal government will take action.