LEGAL: A new pathway for Child Sexual Abuse victims

The way the South Australian Supreme Court has found an Adelaide school liable for child sexual abuse (CSA)may open a new door for victims to claim money from institutions.

The decision may also settle the legal debate over whether employers can be vicariously liable for crimes committed by a worker.

An ex-student is successfully claiming money from their school for at least 20 counts of sexual abuse by a boarding house master over an eight-month period in 1962.

The incident has left him with lifelong post-traumatic stress disorder and, while the attacker has been held criminally accountable, long-term financial support is what the ex-student needs most.

The decision will bind South Australian courts to automatically find vicarious liability where the relationship between the victim and attacker matches the facts ruled on by the Supreme Court.

In the judgment, Justice Peek extends vicarious liability to instances of sexual abuse where the employer has put the attacker in a role of power and intimacy.

And he found that employment as a boarding house master required the offender to put students to bed and provide the kind of emotional support that necessarily requires intimacy.

Duncan Basheer Hannon’s sexual abuse claims expert Matthew DeGregario says the reason victim’s lawyers want to rely on vicarious liability is because otherwise you need to prove the institution knew about the perpetrator and didn’t do anything.

“It becomes difficult for victims of child sexual abuse to overcome those evidentiary hurdles.”

And it is precisely because victims often only raise the abuse much later in life that vicarious liability lends itself to the CSA context.

As it is, the court always meets these claims by asking whether they can even run a fair trial given that passage of time.

DeGregario has routinely pleaded vicarious liability because its mention can improve the chance that a risk-averse employer will negotiate a settlement with the victim rather than go to trial.

But the Supreme Court’s decision is the first Australian ruling to turn that risk into a concrete reality for institutions.

“It will leave a small number of people making their claims in an advantageous negotiating position”

The decision puts the weight of the full court behind introducing vicarious liability as a legal pathway to recovering money from an attacker’s employer.

The strategy could be especially viable for CSA victims because vicarious liability sits apart from the usual need to prove the direct fault of an employer.

Instead, it is a policy-based recognition that employers are often more capable of paying for wrongdoing than an offending employee.

University of Sydney Senior Law Lecturer Dr Jane Wangmann has made submissions on civil liability to the Royal Commission into Institutional Child Sexual Abuse and says that some CSA victims prefer seeking this financial support through the civil system.

“If they’re successful, they’re likely to get a larger reward through the court system than a [state government] redress scheme.”

Only a handful of CSA victims may automatically benefit by sharing the relevant facts with the SA case, but DeGregario believes it is an important step forward by the South Australian judiciary.

“I would say that the justice system, as it is, is stacked against victims of child sexual abuse.”

The Royal Commission, responsible for alerting the Australian public to CSA as an institutional issue, agrees and supports writing vicarious liability for CSA into state laws as an option for civil reform.

More importantly, the Supreme Court decision may trigger a nationwide evolution in judicial practice by extending the common law reach of vicarious liability to CSA.

Vicarious liability finds ‘sufficient connection’ between a worker’s wrongful actions and the performance of their employment duties.

Before this decision, Australian courts had been unable to justify making that connection with a deliberately criminal act.

And by finding that connection with such a serious crime, the South Australian decision makes for a powerful statement on whether to apply vicarious liability in the criminal context.

This unresolved question sharply divided the High Court in NSW v Lepore and Dr Wangmann says it left a real lack of clarity around compensating CSA victims.

“We should expect more claims coming in this context and Lepore left lawyers and victims and defendants without any clear indication about how courts should approach this issue and how lawyers should give advice to their clients.”

DeGregario emphasises that the South Australian decision is not suggesting that vicarious liability applies to every act of sexual abuse.

“That’s not my understanding of what the full court decision stands for, it stands for vicarious liability in that particular factual circumstance.”

However, it is a strong invitation for the High Court to pass judgment on whether vicarious liability extends to criminal acts and what those criminal circumstances would have to be.

DeGregario says the High Court would be careful to connect vicarious liability only to specific crimes and in such a way that doesn’t expose employers to a floodgate of ad hoc claims for any criminal activity committed by their workers.

And the South Australian decision indicates that CSA in a residential school context is one criminal circumstance where employers should be exposed.

There are only a handful of previous successful civil claims for CSA in the state, but those decisions have awarded in the hundreds of thousands for ‘pain and suffering’.

According to DeGregario, if the ‘earning capacity’ of the victim has been impacted then this is the biggest factor in determining whether the payout becomes a very small or very large figure.

The ruling widens the financial prospects of South Australian CSA victims, but whether it will fundamentally change the principles of vicarious liability is ultimately up to the High Court.

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Parliamentary inquiry doubts Australia’s TPP free trade deal

Tuesday’s Parliamentary inquiry into the US-led Trans-Pacific Partnership free trade deal has raised concerns that our economic analysis of the deal is insufficient and lacks independence.

On the eve of final negotiations for the free trade agreement binding Australia and our 11 Pacific neighbours, the inquiry has heard evidence that previous government projections on free trade deals are rarely checked against reality.

First Assistant Secretary for Trade Agreements, Frances Lisson, testified that the Department of Foreign Affairs uses projections to inform Australia’s negotiation objectives but only sometimes orders an independent study to see whether those projections are realised.

“Certainly the objectives that are outlined in the feasibility study are very much part of the negotiated outcomes, so the free trade agreements are only entered into when they achieve the objectives that have been set out to begin with”

The government had entered an earlier US-AUS free trade agreement, projecting the deal would boost our GDP by $5.7 billion. However, ANU’s independent analysis the agreement did not deliver any benefit to our GDP.

Heading the inquiry, Peter Harris has reacted to yesterday’s testimony, demanding further economic review of the deal by a body independent from the trade negotiators.

“We should do better on transparency”

A 2013 leak of the secret TPP negotiations casted doubts over Australia’s negotiating power, revealing Australia was most willing to fall in line with a US-centric agreement that grants few concessions to its Pacific counterparts.

Due to the lack of transparency surrounding the negotiations, it remains unclear whether Australia has a position beyond rank and file obedience to the US.

Quick Thought: Abbott’s ABC onslaught and Civic Weakness

The weeklong escalation of Tony Abbott’s attack upon our national broadcaster began with shared criticism of an editorial mistake and ended with claims the ABC “betrayed our country” for broadcasting convicted Australian terrorist Zaky Mallah’s spontaneous hostility.

Strong arguments have been made for and against Mallah’s appearance on the ABC’s Q&A panel debate. The Mallah defenders backed his challenge to the new Ministerial power to strip foreign fighters of citizenship. The Waleed Alys countered that Mallah was careless to accuse Parliamentary Secretary Steven Ciobo of inciting further radicalisation of Aussie Muslims and achieved nothing except distracting the public from the question of governmental overreach.

However, by equivocating the ABC with a terrorist mouthpiece there is no doubt Abbott has pushed the question of ministerial revocation powers only further from the public mind. Ironically, by Waleed Aly’s yardstick, Abbott has out-Mallah-ed Mallah.

Regardless of position, it was abundantly clear to both panellist and viewer that Mallah’s comments had offended many and misrepresented most of Australia’s Muslim community. Mallah’s hostility lent him no favour against the backdrop of his terrorist past and host Tony Jones’ appalled reaction perfectly summed the public’s discomfort.

Some viewers contended with the merits of Mallah’s initial question and pushed aside his later spontaneous outburst as an obvious indiscretion. Other viewers wrote letters of complaint expressing their outrage at Mallah’s very appearance. Indisputably, both viewers arrived at positions that could only have evolved from understanding the spontaneous nature of political debate.

Over the week, the government has ratcheted up its cries of institutional failure, Ministers have boycotted Q&A and Abbott has threatened the ABC with a government-led inquiry.

Yet, were we to call Mallah’s appearance an egregious misstep by Q&A, he joins only a handful of incidents that fall embarrassingly short of institutional failure. Without question,  Q&A’s few missteps are a small price for the overwhelming public benefit of a weekly debate on our politics.

The real tragedy of Abbott’s efforts is that he confuses a citizenry that shouldn’t have to tolerate Mallah’s indiscretion with one entirely incapable of tolerating spontaneous debate over the Government’s security agenda.

Once the Government’s tirade extended to attacking the entire institution, the argument was no longer about how offensive Mallah’s spontaneous outburst is, but instead a decision that we are unable to tolerate the spontaneous altogether, that spontaneous dialogue should be removed from our politics, heaven forbid it be at the expense of the government viewpoint. A viewpoint our healthy democracy demands the ABC to criticise.

This is most offensive, for the idea that the Abbott government isn’t presuming an engaged, self-assured citizenry confidently capable of wielding its political sovereignty, but rather directionless citizens needing to be shepherded. Agreeing with the government’s manner of attack is a plea by Australians needing to be administered by democracy rather than living democracy in the sense of exercising our sovereignty.

As long as the ABC continues to inform us, it is certainly on ‘our’ side and an independent public broadcaster is the sign of a robust democracy with citizens worthy of wielding sovereign power. So when Abbott raises the challenge ‘whose side are you on?’ it is not the ABC’s response but the very asking of that question that degrades our civic engagement.

THE WIRE: Myanmar Refugees boost rural Aussie economy by $40 million

The resettlement of Myanmar refugees to rural Victorian town, Nhill, has grown its economy by $41 million and saved the community from further decline in population. Deloitte and AMES’s Migrant and Resettlement Report has found refugee resettlement has been socially and economically beneficial. We take a look at which factors lead to successful resettlement in a rural setting.

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THE WIRE: Non-coercive measures could make Islamic State less attractive to Aussie foreign fighters

The rising number of radicalised Australians leaving to fight for Islamic State has put pressure on the Government to respond by imprisoning returning foreign fighters.

A Lowy Institute report claims a bigger role for rehabilitation and community support may be the key to making Islamic State less attractive to at-risk Australians. We ask terrorism expert Andrew Zammit how his reports findings are different to the Government’s current approach.

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Amending the Data Retention Bill: Is a Public Interest Advocate really enough to protect Journo’s metadata?

The deal struck between the Coalition and Labor to better protect journalist’s metadata with a ‘journalist information warrant’ hurdle has been passed as the Telecommunications (Interception and Access) Amendment Bill 2015.

The most promising feature of the Bill’s additional thirty pages is the role of Public Interest Advocate, making submissions to at least limit the extent of surveillance allowed under a warrant.

Attorney General George Brandis supports the balance stuck between security interests and protection of privacy and says about the Bill,

‘It does contain safeguards that were not there before.  It is in the Government’s view – shared.’

However, the lack of independence and reach of the Public Interest Advocate is attracting criticism from legislators and privacy advocates.

An Advocate appointed by the Prime Minister’s office is dismissible at any time and will be privy to the same information the security agency chooses to provide the government-appointed decision maker.  They are not allowed to contact the relevant journalist without attracting a 2 year jail sentence and the Bill’s lack of clarity has left many unable to decipher exactly who the Public Interest Advocate is meant to be representing.

The decision maker’s test is whether ‘the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source.’

The Public Interest Advocate’s submissions have no enforceability under the Bill but are one of six factors the decision maker considers before issuing a warrant.

Independent Senator Nick Xenophon says he is unable to see how one can be an effective devil’s advocate under the Bill’s conditions.

‘If the Government and the Opposition think that the public interest advocate amendments that they put together in haste will do the job, then they’re sadly deluded.’

In the wider context of a Bill that compels telephone companies to retain two years worth of every Australian customer’s metadata to be searchable by security agencies and the Police, the inadequacy of the Public Interest Advocate’s protection of journalist’s metadata does not bode well for a public expecting future Government measures to protect their privacy.

ACMA reports over 500, 000 authorisations granting security agencies access to Australian phone customer’s metadata in the 2014 financial year.

FULL INTERVIEW: Julian Burnside on TPV’s, Off-shore processing and Resettlement (09/11/14)

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The Wire: New counter-terrorism legislation to lower Aussie legal protections

New counter-terrorism measures have successfully passed through the Senate, amongst these measures is the power for the police to detain those they suspect without charge under a control order. The new laws have caused controversy for how far they impact on Australian’s civil liberties.. HERE

Guests

Senator Penny Wright

Barrister Greg Barns

Human Rights Law Centre Director of Advocacy and Research Emily Howie