tag:theconversation.com,2011:/ca/topics/victorian-law-15776/articlesVictorian law – The Conversation2023-12-01T12:34:49Ztag:theconversation.com,2011:article/2161162023-12-01T12:34:49Z2023-12-01T12:34:49ZWhy men in 19th century Wales dressed as women to protest taxation<p>South-west Wales was reeling in the wake of social unrest in November 1843. There had been a series of protests over several years by farmers furious at taxation levels, mainly attacking tollgates. Often, the men involved dressed as women and were therefore known in Welsh as <em>Merched Beca</em> (Rebecca’s daughters). The events that unfolded came to be known as the <a href="https://books.google.co.uk/books/about/Rebecca_s_Children.html?id=7-ohAAAAMAAJ&redir_esc=y">Rebecca riots</a> in English. </p>
<p>There has been speculation that the name “Rebecca” stemmed from a literal interpretation of <a href="https://biblehub.com/genesis/24-60.htm">Genesis 24:60</a> in the Bible, which refers to Rebekah’s offspring possessing the gates of their enemies. But the truth is, nobody really knows why the name was chosen.</p>
<p>Tollgates had been <a href="https://www.parliament.uk/about/living-heritage/transformingsociety/transportcomms/roadsrail/overview/turnpikestolls/">introduced</a> in Britain from the late 17th century as a means of raising revenue to maintain public roads. They were regulated and maintained by the <a href="https://www.campop.geog.cam.ac.uk/research/projects/transport/onlineatlas/britishturnpiketrusts.pdf">Turnpike Trusts</a>, individual bodies set up by parliament. </p>
<p>Tolls had long been regarded as a burden by the people. But complaints to magistrates about their unfair regulation were largely ignored. The tollgates therefore became regarded as symbols of oppression to be demolished by the Rebeccaites, with unrest largely concentrated across Carmarthenshire, Cardiganshire and Pembrokeshire. </p>
<p>The first recorded appearance of Rebecca was on <a href="https://www.peoplescollection.wales/content/rebecca-riots">May 13 1839</a>, when a tollgate at Efailwen in Pembrokeshire was demolished. Rebecca emerged again during the winter of 1842, with protests <a href="https://www.nationalarchives.gov.uk/education/resources/rebecca-riots/">intensifying</a> throughout the summer of 1843. </p>
<p>The attacks targeted tollgates and private property, while toll-keepers and authority figures were also intimidated. These included the local gentry, who upheld law and order locally as magistrates and oversaw the administration of the tolls as members of the Turnpike Trusts.</p>
<p>Those who protested were predominantly young men who were tenant farmers, farm servants and agricultural labourers. But other protesters included non-agricultural labourers from industrialised regions of Carmarthenshire and neighbouring Glamorgan.</p>
<p>A striking element of the protest was the adoption of women’s clothing to conceal the identities of those involved. This was theatrically woven into the ritual of protest as “Rebecca”, the name given to the leader of the various protests, called on her children to tear down any gate that blocked their way. </p>
<p>However, the Rebecca riots were more than just a protest movement against the tolls. They were also a reaction to the socio-economic climate, to agricultural depression, failing harvests, rising levels of rent and the weight of various taxes. All these factors collectively placed substantial pressure on rural communities. </p>
<p>There was also widespread <a href="https://www.nationalarchives.gov.uk/education/resources/1834-poor-law/">criticism</a> of the administration of the new <a href="https://www.parliament.uk/about/living-heritage/transformingsociety/livinglearning/19thcentury/overview/poorlaw/">Poor Law</a>, introduced in 1834, which ensured that poor people were housed in <a href="https://www.historic-uk.com/HistoryUK/HistoryofBritain/Victorian-Workhouse/">workhouses</a>, where families were separated, subjected to hard work and harsh living conditions.</p>
<h2>Escalation</h2>
<p>On June 19 1843, a procession in the market town of Carmarthen led to the storming of the <a href="https://coflein.gov.uk/en/site/17651/">workhouse</a>. This signalled a turning point that saw the protests intensify, with attacks on private property in addition to tollgates. </p>
<p>There were reports of physical violence and use of firearms too, with one recorded death, that of <a href="https://historypoints.org/index.php?page=site-of-fatal-rebecca-riot-hendy">Sarah Williams</a>, the 75-year-old keeper of the Hendy tollgate in Carmarthenshire. Someone shot her while she tried to rescue her belongings from the burning tollhouse on September 9 1843.</p>
<p>Following the Carmarthen workhouse attack, The Times newspaper <a href="https://oro.open.ac.uk/78848/1/DE-WINTON_A329_RVOR.pdf">sent</a> Thomas Campbell Foster to report on “The State of South Wales”. His reports disseminated news of Rebecca and her daughters across Britain. </p>
<p>Even Queen Victoria was concerned by the events. She wrote in her <a href="http://www.queenvictoriasjournals.org/search/displayItem.do?FormatType=fulltextimgsrc&QueryType=articles&ResultsID=3399090357290&filterSequence=0&PageNumber=1&ItemNumber=1&ItemID=qvj03918&volumeType=PSBEA">journal</a> how she strongly advised the home secretary, Sir James Graham, to apprehend and punish the Rebeccaites. She feared events in Wales would spur on the movement in Ireland to repeal the laws which tied Ireland to Great Britain.</p>
<p>Into the autumn and winter months of 1843, Rebecca and her daughters appeared less frequently. Although a Carmarthenshire land agent, Thomas Herbert Cooke, <a href="https://www.google.co.uk/books/edition/Land_Agent/dy5JEAAAQBAJ?hl=en&gbpv=0">wrote</a> in late November how “an incendiary fire however occurs now and then to let people know that Rebecca is still alive, and sometimes awakes from her slumbers”.</p>
<h2>Government inquiry</h2>
<p>During this time, a government <a href="https://books.google.co.uk/books/about/Report_of_the_Commissioners_of_Inquiry_f.html?id=W5Z7YgEACAAJ&redir_esc=y">inquiry</a> was conducted into the causes of the riots, reporting its findings in the spring of 1844. Although the tollgates survived, the findings of the inquiry led to greater regulation of the Turnpike Trusts in Wales. New county police forces were also <a href="https://journals.library.wales/view/1386666/1423395/118#?xywh=-1917%2C-209%2C6097%2C3912">established</a> in the wake of the riots. </p>
<p>In total, around 250 tollhouses and gatehouses were <a href="https://museum.wales/stfagans/buildings/tollhouse/">destroyed</a> by Rebecca. In the aftermath, those captured and accused were punished by transportation to the penal colonies in Tasmania. Those such as <a href="https://convictrecords.com.au/convicts/hughes/john/72743">John Hughes</a>, known as <em>Jac Tŷ Isha</em>, were never to return to their native Wales. Others took on an almost mythical identity among local people, such as <a href="https://www.google.co.uk/books/edition/In_Pursuit_of_Twm_Carnabwth/irhAzwEACAAJ?hl=en">Thomas Rees</a>, or <em>Twm Carnabwth</em>, remembered as the leader of the first Rebecca attack at Efailwen.</p>
<figure class="align-center ">
<img alt="A wooden sculpture showing a horse flanked by two women leaping over a gate." src="https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562391/original/file-20231129-19-8ksnxf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A wooden sculpture depicting the Rebecca riots in St Clears, Carmarthenshire.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/wooden-sculpture-depicting-rebecca-riots-1839-517024174">James Hime/Shutterstock</a></span>
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<p>However, Rebecca did not disappear entirely, and instances of protest and threatening letters sent in her name appear later in other parts of Wales. During the 1870s, Rebecca and her daughters appeared in protests concerning salmon poaching on the river Wye in mid Wales, <a href="https://journals.library.wales/view/1326508/1326739/35#?xywh=-1863%2C-216%2C6676%2C4285">described</a> as the “second Rebecca Riots”. </p>
<p>In the 20th century, the concept of Rebecca was invoked once more. In 1956, Welsh language newspaper, <em>Y Seren</em>, <a href="https://www.google.co.uk/books/edition/Tryweryn_New_Dawn/zxn5zwEACAAJ?hl=en">inferred</a> that “the spirit of Beca” was once again needed to campaign against the flooding of Cwm Tryweryn in Gwynedd to <a href="https://www.bbc.co.uk/news/uk-wales-64799911">create a reservoir</a> to provide drinking water for Liverpool. </p>
<p>And Rebecca continues to resonate in Wales to this day, inspiring <a href="https://nation.cymru/news/welsh-village-to-stage-re-enactment-of-historic-tollgate-attack-that-sparked-rebecca-riots/">re-enactments</a> and community <a href="https://www.cardiff.ac.uk/news/view/2721666-students-and-academics-take-cardiff-university-to-the-urdd-eisteddfod">engagement</a> – it shows that the fight for justice and the tradition of protest continues to play a powerful part in Welsh society.</p><img src="https://counter.theconversation.com/content/216116/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lowri Ann Rees does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Rebecca riots saw Welsh farmers disguised as women destroy tollgates as a way of challenging what they believed was an oppressive taxation system.Lowri Ann Rees, Senior Lecturer in Modern History, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1653012021-08-09T05:15:47Z2021-08-09T05:15:47ZNumber of women on remand in Victoria soars due to outdated bail laws<p>Over the past 12 months, up to 1,200 people spent time in Victoria’s maximum-security women’s prison without being convicted and sentenced to a term of imprisonment. They were on remand: waiting in custody for their trial or sentencing, or to be granted bail. </p>
<p>Since 2018, Victoria’s bail laws have made remand the default option for an expanded list of offences. Even when a woman’s alleged offending is non-violent and relatively low level, her chance of being granted bail can be impossibly low. This is especially so if she is experiencing severe social disadvantage. Many women will be denied bail because they don’t have an address: they’re living in their car, couch-surfing, or unable to return home because of family violence. </p>
<p>Thanks to a series of punitive bail reforms, the remand situation in Victoria’s prisons has now reached crisis level.</p>
<p>In the past ten years, the number of people entering the women’s prison on remand in Victoria has <a href="https://www.corrections.vic.gov.au/monthly-time-series-prisoner-and-offender-data">trebled</a>. For First Nations women, the number has increased <a href="https://www.corrections.vic.gov.au/annual-prisoner-statistical-profile-2009-10-to-2019-20">five-fold</a>. </p>
<p>Shockingly, remandees now <a href="https://www.corrections.vic.gov.au/monthly-time-series-prisoner-and-offender-data">outnumber</a> sentenced prisoners in the women’s system. Most will spend less than one month on remand, although a significant proportion <a href="https://www.corrections.vic.gov.au/women-in-the-victorian-prison-system">(32%)</a> spend between one and six months in custody. The <a href="https://www.corrections.vic.gov.au/women-in-the-victorian-prison-system">majority</a> will leave the women’s prison without having spent any time under sentence. </p>
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Read more:
<a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">Not for punishment: we need to understand bail, not review it</a>
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<p>Unfortunately, Victoria is not an outlier. In New South Wales, <a href="https://www.bocsar.nsw.gov.au/Pages/bocsar_custody_stats/bocsar_custody_stats.aspx">43%</a> of women in prison are on remand, compared to 31% in 2013. National figures show more than a third <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/2020#data-download">(37%)</a> of women in prison are unsentenced, up from 22% in 2010. </p>
<p>On a global scale, Australia’s startling rate of growth in its remand populations far outpaces those of similar jurisdictions internationally, such as <a href="https://www.prisonstudies.org/sites/default/files/resources/downloads/world_pre-trial_list_4th_edn_final.pdf">England and Wales, and Canada</a>. </p>
<p>Increased <a href="https://journals.sagepub.com/doi/abs/10.1177/1462474520967566">churn</a> of unsentenced prisoners is a result of the <a href="https://theconversation.com/after-bourke-st-victoria-should-not-rush-in-on-bail-reform-71697">politicisation of bail laws</a>. State governments have used bail reform to send a <a href="https://theconversation.com/not-for-punishment-we-need-to-understand-bail-not-review-it-28651">“tough on crime” message</a> when confronted with the fallout from high-profile instances of violent offending by people on bail. </p>
<p>In Victoria, this occurred after James Gargasoulos drove his car into a busy mall in central Melbourne, killing six pedestrians in January 2017. While recently released <a href="https://www.coronerscourt.vic.gov.au/sites/default/files/2020-11/Bourke%20Street%20Coronial%20Finding%20-%20Digital_1.pdf">findings</a> from the coronial inquest into these deaths found changes to policing practices, not bail laws, were required to prevent a similar event occurring in the future, the Victorian government had already acted. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=396&fit=crop&dpr=1 600w, https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=396&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=396&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=497&fit=crop&dpr=1 754w, https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=497&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/414703/original/file-20210804-17-2hsljx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=497&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Bourke Street killings were the catalyst for making Victoria’s bail laws more stringent.</span>
<span class="attribution"><span class="source">Tracey Nearmy/AAP</span></span>
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<p>Twenty-two changes to the Bail Act were implemented in 2018, making it the <a href="https://www.parliament.vic.gov.au/publications/research-papers/summary/36-research-papers/13893-no-bail-more-jail-breaking-the-nexus-between-community-protection-and-escalating-pre-trial-detention">strictest bail regime in the country</a>. But there is little consideration of the wider impact of making it harder for people to be granted bail, especially for groups that are already over-policed, such as Aboriginal and Torres Strait Islander peoples and people experiencing homelessness. </p>
<p>Changes to bail in Victoria were intended to enhance community protection. But <a href="https://d3n8a8pro7vhmx.cloudfront.net/fitzroylegal/pages/52/attachments/original/1594001770/Constellation_of_Circumstances_Report_digital_landscape.pdf?1594001770">lawyers working within the bail and remand system</a> report they are disproportionately affecting women who are homeless and victim-survivors of family violence. According to lawyers, a lack of safe housing options is the biggest barrier to women accessing bail in the current system. </p>
<p>Lawyers estimate the vast majority of women they represent in the bail and remand court are victim-survivors of family violence — a claim supported by an <a href="https://www.corrections.vic.gov.au/women-in-the-victorian-prison-system">analysis of women entering prison on remand</a>. They fear that even short periods of remand will <a href="https://theconversation.com/excessive-strip-searching-shines-light-on-discrimination-of-aboriginal-women-in-the-criminal-justice-system-163969">further traumatise women</a> and cause major disruptions to their lives and families. </p>
<p>Although remand is not intended to inflict punishment, <a href="https://journals.sagepub.com/doi/abs/10.1177/1462474520967566">its punitive effects</a> are difficult to ignore. Being remanded can result in someone losing their housing, their job, and having their children removed and placed in out-of-home care. </p>
<p>Lawyers are also concerned that high thresholds for bail are pressuring women to plead guilty just to avoid extended periods of time on remand awaiting their day in court. This will mean more women are trapped in cycles of incarceration that have damaging flow-on effects.</p>
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Read more:
<a href="https://theconversation.com/we-need-to-consider-granting-bail-to-unsentenced-prisoners-to-stop-the-spread-of-coronavirus-134526">We need to consider granting bail to unsentenced prisoners to stop the spread of coronavirus</a>
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<p>Despite the overall trend of growth, last year remand numbers in Victoria declined significantly due to the impacts of COVID-19. As infection rates rose, magistrates were wary of sending people to prison unsentenced, knowing they would be held for weeks in <a href="https://www.tandfonline.com/doi/full/10.1080/10345329.2020.1863310">quarantine conditions that amount to solitary confinement</a>. The ban on prison visits would also be particularly hard on women, who are more likely to be mothers and primary carers. </p>
<p>Victorian remand numbers are now bouncing back. Yet the 2020 downturn showed us prisoner reductions are possible and necessary. When the harmful effects of imprisonment are given serious consideration – with or without a pandemic – women can and should be diverted from prison.</p>
<p>To reduce rates of remand, we need to <a href="https://d3n8a8pro7vhmx.cloudfront.net/fclc/pages/715/attachments/original/1598396294/FCLC_DecarcerationStrategy_WebSinglePgs%2824aug2020%29.pdf?1598396294">repeal changes to the Bail Act</a> that have made prison the default, not a last resort. Diverting prison funds towards public housing will also produce longer-term benefits for women, their children and the community.</p><img src="https://counter.theconversation.com/content/165301/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Russell is affiliated with Smart Justice for Women. </span></em></p>While tightened as part of a ‘tough on crime’ stance, the bail laws cause unintended trauma for women on remand, and should be repealed.Emma Russell, Senior Lecturer in Crime, Justice & Legal Studies, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1562842021-03-03T05:10:50Z2021-03-03T05:10:50ZIn Victoria, animal abuse may soon be considered a form of family violence. Here’s why that matters<figure><img src="https://images.theconversation.com/files/387405/original/file-20210303-21-1ujpvvw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>A woman’s decision to leave a violent and abusive relationship is a complex process. She first needs to consider the risks to her and her children. Paradoxically, taking that step towards safety is also <a href="https://www.coronerscourt.vic.gov.au/sites/default/files/2018-11/vsrfvd%2Bfirst%2Breport%2B-%2Bfinal%2Bversion.pdf">the time of greatest danger</a> of homicide, sexual assault and increased violence. </p>
<p>Pets and service animals are also a part of the lives of many families. This means they are an important part of the decision-making process when women consider leaving a violent situation. </p>
<p>The pets may be a critical source of therapeutic support, but they may also be at risk of harm and used to exert control over people (“you leave and you won’t see those animals again”). Animals’ central role in family life means many victim-survivors of family violence are reluctant to leave because they fear their pets will be harmed.</p>
<p>To combat this, <a href="https://inotes1.parliament.vic.gov.au/PARLIAMENT/General/PubPDocs.nsf/xsp/.ibmmodres/domino/OpenAttachment/PARLIAMENT/General/PubPDocs.nsf/96FB96469120CD89CA25868C0044C27F/$File/NP095-web.pdf?Open">a family violence motion has been presented</a> in the Victorian parliament that seeks to recognise animal abuse as a form of family violence. If all elements were adopted, it would increase the safety of women and children. </p>
<p>The motion advocates several policy and legislative options. These include:</p>
<ul>
<li><p>financial assistance to victim-survivors of family violence, including for the care of animals</p></li>
<li><p>a review of the <a href="https://www.legislation.vic.gov.au/in-force/acts/family-violence-protection-act-2008/053">Family Violence Protection Act 2008</a> to recognise that companion animals are affected by family violence and require protection</p></li>
<li><p>companion animals are placed in the care of either the victim-survivor or other appropriate carers to protect them.</p></li>
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<p>These measures would be an important step towards improving support and so the safety of victim-survivors when animals are also caught up in family violence.</p>
<p>If this motion is passed, Victoria will be the second state after New South Wales to acknowledge the importance of the protection of animals for women’s safety. By comparison, more than two-thirds of US states <a href="https://www.animallaw.info/article/domestic-violence-and-pets-list-states-include-pets-protection-orders">have enacted legislation</a> that includes provisions for pets in domestic violence protection orders.</p>
<p>Growing <a href="https://kb.rspca.org.au/knowledge-base/is-there-a-link-between-domestic-violence-and-animal-abuse/">research evidence</a> points unequivocally to the link between animal abuse and family violence. It shows animal cruelty occurs more frequently where family violence is also occurring. </p>
<p><a href="https://pubmed.ncbi.nlm.nih.gov/29294833/">Some studies suggest</a> animal abuse is an indicator of more severe family violence and domestic homicide. If the animals are not safe, then neither are the humans, and vice versa. </p>
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Read more:
<a href="https://theconversation.com/abuse-and-abandonment-why-pets-are-at-risk-during-this-pandemic-134401">Abuse and abandonment: why pets are at risk during this pandemic</a>
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<p>Recognition of the need for intervention orders to include animal protection is not the only aspect of policy in need of review. Currently, if the companion animal is registered to the violent partner as the owner, a woman can be charged with theft for taking the animal with her, even when he is threatening the animal. The provision in the motion for need and protection to override ownership is therefore important. </p>
<p>Other concerns arise with microchips: the owner of the animal can trace the animal and locate a woman who is in hiding if she does not put a notice on the microchip database not to disclose her address. Some organisations (including veterinary clinics) are now bringing this to the attention of women using their services.</p>
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<img alt="" src="https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/387408/original/file-20210303-13-ic0c6p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A motion before the Victorian parliament calls for pets and companion animals to be considered victims of family violence.</span>
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<p>Unsurprisingly, the need for financial support is high on the motion’s agenda. In particular, there are housing and refuge options to consider. </p>
<p>Currently, women leaving violent situations have few options to take their animals with them. Women with disabilities who have service or therapeutic animals are at a distinct disadvantage when trying to leave and find suitable accommodation. </p>
<p>Bringing an animal into a refuge or emergency accommodation can be disruptive for other residents, especially if they have a fear of animals or allergies. Keeping animals with women and children is therefore not always the best option in a crisis. Dedicated animal shelters allowing for up to two months of care need to be made available.</p>
<p>In some regions, there are limited networks of animal shelters and veterinarians that have developed these resources to shelter dogs and cats for short periods. Beyond household companion animals, there is also a great need for support for large animals such as horses and goats, particularly in rural communities.</p>
<p>The changes the motion is calling for are timely. They are not radical, but would be an important further step in the response to family violence, backed by <a href="https://www.dvnsw.org.au/wp-content/uploads/2020/11/Nov-DVNSW-Report-on-Animals-and-People-Experiencing-Domestic-and-Family-Violence.pdf">current research</a>. </p>
<p>Advances in multi-agency risk-assessment tools and innovations within the refuge and specialist family violence sector <a href="http://www.edvos.org.au/how-we-can-help/what-is-family-violence/violence-animal-abuse/">are highlighting animal abuse</a> as an important consideration in responding to family violence.</p>
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Read more:
<a href="https://theconversation.com/its-time-coercive-control-was-made-illegal-in-australia-114817">It's time 'coercive control' was made illegal in Australia</a>
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<p><em>Update: This motion was unanimously passed by the Victorian parliament on March 3, 2021.</em></p><img src="https://counter.theconversation.com/content/156284/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Women leaving violent situations need to be able to ensure the safety of their companion animals, and a motion before the Victorian parliament is seeking changes to achieve that.Kristin Diemer, Associate professor, The University of MelbourneCathy Humphreys, Professor of Social Work, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1438072020-08-02T08:47:15Z2020-08-02T08:47:15ZExplainer: what is a ‘state of disaster’ and what powers does it confer?<figure><img src="https://images.theconversation.com/files/350708/original/file-20200802-16-1ywtcqv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> </figcaption></figure><p>A “state of disaster” has been declared for the whole of Victoria from 6pm, Sunday August 2, for a month. How is this different from the existing “state of emergency” and what powers does it give the Andrews government?</p>
<h2>What is the difference between a state of emergency and a state of disaster?</h2>
<p>Victoria has been in a state of emergency since <a href="https://www.abc.net.au/news/2020-03-16/victoria-coronavirus-state-of-emergency-powers-explained/12059194">March 16 2020</a>. This is a declaration that is made under the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/phawa2008222/s198.html">Public Health and Wellbeing Act 2008</a>, where there is a serious risk to public health. </p>
<p>The Act confers wide-ranging powers on the Chief Health Officer. These include the power to quarantine people, prohibit mass gatherings and impose other restrictions on the movement of people. The Act also confers a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/phawa2008222/s200.html">broad power</a> to give any other direction that is reasonably necessary to protect public health.</p>
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Read more:
<a href="https://theconversation.com/state-of-disaster-called-as-melbourne-moves-to-nightly-curfew-and-stage-4-restrictions-143804">State of disaster called as Melbourne moves to nightly curfew and stage 4 restrictions</a>
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<p>A state of disaster addresses matters beyond public health issues. It is intended to deal with emergencies such as natural disasters, explosions, terrorism or sieges, but it can also be used to deal with “a plague or an epidemic”. It was used in Victoria in <a href="https://www.emv.vic.gov.au/news/state-of-disaster-declared-in-victoria">January 2020</a> during the bushfires, but the declaration was limited to specific areas that were in danger from the spread of bushfires. It was initially for a period of 7 days, which was later <a href="https://emergency.vic.gov.au/news-and-media/state-of-disaster-extended-for-48-hours">extended</a> for a short period. </p>
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<p>This time, however, the state of disaster has been declared for the entire state of Victoria, and for the maximum period of a month. A further declaration can be made to continue the state of disaster if the emergency continues after the month ends.</p>
<p>The <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ema1986190/s23.html">Emergency Management Act 1986</a> allows the premier of Victoria to make such a declaration after considering the advice of the minister for police and emergency services and the emergency management commissioner.</p>
<p>The premier has to be satisfied there is an emergency that “constitutes a significant and widespread danger to life or property in Victoria”. </p>
<h2>What powers does a state of disaster confer?</h2>
<p>The declaration of a state of disaster gives the police minister responsibility for directing and co-ordinating the activities of all government agencies. The minister may also allocate government resources as necessary to respond to the disaster. </p>
<p>The minister can direct government agencies to act or refrain from acting in particular ways to deal with the disaster. Such a direction prevails over anything to the contrary in any state law. </p>
<p>One of the most extreme powers the minister has is to override legislation. For centuries, it has been accepted in Australia and the United Kingdom that governments do not have executive powers to suspend or dispense with the application of the law set out in statutes. </p>
<p>In this case, however, it is a <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/ema1986190/s24.html">statute</a> that is giving the minister, during a state of disaster, the power to declare that the operation of the whole or any part of an Act or legislative instrument is suspended.</p>
<p>Reassuringly, there are strict limits placed on this power. The minister can only exercise it if they believe compliance by a government agency with the provisions of an Act or instrument that prescribes the agency’s duties or responsibilities, would inhibit its response to the disaster. </p>
<p>Other relevant powers conferred on the minister include the power to control movement within, and entry into or departure from, the disaster area (which is the whole of the state) or any part of it.</p>
<h2>What other effect does declaring a state of disaster have?</h2>
<p>The <a href="http://royalcommission.vic.gov.au/Commission-Reports/Final-Report.html">royal commission into the deadly 2009 Victorian bushfires</a> was critical of the failure to declare a state of disaster. It noted that beyond the coercive powers granted by such a declaration, it “would provide <a href="http://royalcommission.vic.gov.au/Commission-Reports/Final-Report/Volume-2/Chapters/Emergency-and-Incident-Management.html">symbolic recognition of the gravity of a situation</a>”, which might have sharpened the focus of emergency services. It would also have put political leaders firmly in charge of the emergency, reassuring the public and ensuring high-level government attention. </p>
<p>In Victoria at present, there is no doubt the emergency services are focused and there is high-level government attention.</p>
<p>But the declaration of a state of disaster may be effective in reinforcing to the public the absolute necessity of complying with government instructions in the midst of this pandemic. The symbolism of the action may therefore be as important as the powers conferred.</p>
<h2>How does a ‘state of emergency’ fit with a ‘state of disaster’?</h2>
<p><a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/phawa2008222/">Section 198 of the Public Health and Wellbeing Act</a> provides that a declaration of a state of emergency does not derogate from or limit any provisions in relation to the declaration of an emergency under any other Act. </p>
<p>It appears there is an intention that the powers conferred on people in relation to both a state of emergency and state of disaster should be exercised in a co-operative and co-ordinated manner to ensure a whole of government response to the emergency.</p>
<p>It is about marshalling all the government’s firepower to defeat the pandemic.</p><img src="https://counter.theconversation.com/content/143807/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and sometimes does consultancy work for governments and inter-governmental bodies.</span></em></p>A state of disaster confers more power on the minister for police and emergency services to ensure compliance with the laws put in place to defeat the pandemic. It plays a powerful symbolic role, too.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1280512019-12-15T18:57:56Z2019-12-15T18:57:56ZYour Airbnb guest could be a tenant. Until the law is cleared up, hosts are in limbo<figure><img src="https://images.theconversation.com/files/306271/original/file-20191211-95149-1xafqeu.jpg?ixlib=rb-1.1.0&rect=383%2C0%2C3220%2C2113&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Victorian court decision that an Airbnb agreement had the status of a lease has profound implications for guests and hosts.</span> <span class="attribution"><span class="source">Daniel Krason/Shutterstock</span></span></figcaption></figure><p>With summer holidays around the corner, many Victorians may be thinking about offering their homes through a home-share platform, such as Airbnb, while they get away themselves. Airbnb’s terms of service describe home-share arrangements as a “<a href="https://www.airbnb.com.au/terms">licence</a>”. Legally, a licence can be terminated at any time and a guest who does not leave is a trespasser.</p>
<p>However, in 2016 the <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2016/313.html">Victorian Supreme Court decided</a> home-share arrangements may constitute a lease. This decision indicates residential tenancy law may apply to all home-share arrangements where the host is away from the premises. </p>
<p>This would impose significant legal obligations on hosts, who would be regarded as landlords. Guests, if considered tenants, would have all the associated legal protections.</p>
<p>For example, if a guest refuses to leave the premises, the host/landlord would have to follow the eviction process required by tenancy law. This has happened in <a href="https://www.businessinsider.com/airbnb-host-cant-get-squatter-to-leave-2014-7/commerce-on-business-insider/?r=AU&IR=T">California</a>. Australian courts will eventually have to decide this issue.</p>
<h2>How did the court arrive at its decision?</h2>
<p>The court’s decision involved a tenant who offered the premises to guests on Airbnb. The court decided the tenant had breached the terms of the lease by subletting the premises. The tenant was evicted, as tenants cannot sublet without the landlord’s consent under <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/rta1997207/s81.html">tenancy law</a>.</p>
<p>The court focused on the relationship between the tenant and the guest and determined that the host had given “exclusive possession” of the premises to guests. In Victorian tenancy law, exclusive possession is required to create a lease. </p>
<p>The court said it did not matter that each guest’s stay was only a few days, or that the Airbnb terms described the arrangement as a “licence” rather than a lease. </p>
<p>Although the court’s decision applied to tenants in this case, logically the decision applies to all whole-of-premises home-share arrangements, including where the host owns the premises. This is because the legal test for creating a lease is the same as that for creating a sublease.</p>
<p>The decision is controversial because home sharing on Airbnb is similar to boarding arrangements (where the host provides accommodation and services such as cleaning), hotel rooms and serviced apartments. These arrangements are usually regarded as a licence, not a lease. This is because the host has access to the property during the guest’s stay (for example, to do cleaning), so exclusive possession is not given to the guest.</p>
<p>In fact, Airbnb arrangements are unlike typical tenancy agreements. They specify check-in and check-out times, furniture, linen and towels are usually provided, and “house rules” (for example, on noise levels and smoking) may restrict the guest’s use of the premises. </p>
<p>In addition, Victorian residential tenancy laws <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/rta1997207/s10.html">do not apply to premises ordinarily used for holidays</a>. Potentially, this could exclude premises used for home sharing. </p>
<p>The situation may be different in other Australian states and territories, which, unlike Victoria, exclude from residential tenancies legislation agreements for the purpose of a holiday. However, not all home sharing is done for holiday purposes. For example, it’s also used for travel for business. </p>
<h2>Legal uncertainty remains</h2>
<p>The court’s decision means tenants who provide rented premises on Airbnb without the landlord’s consent may breach their own tenancy agreement and be evicted. However, the court stated that the particular circumstances of each case must be examined. </p>
<p>For example, hosts who provide only part of the premises (such as a bedroom and shared used of a kitchen) but who continue to reside in the premises will not be subletting. This is because they have not provided exclusive use of the premises.</p>
<p>However, if the host is away from the premises, then residential tenancy law may regulate home-share arrangements. This would give guests (now considered a tenant) stronger legal protections, including protection from eviction. The decision shows a court can ignore the description of the arrangement in an agreement if it determines exclusive possession has been provided. </p>
<p>Airbnb provides support to hosts and guests in the case of a dispute over a stay. It also provides compensation to hosts (akin to insurance) if guests damage the property or cause the host financial loss. However, if a host is found to have obligations under residential tenancy law, these obligations belong to the host/landlord, not to Airbnb.</p>
<p>The contentious aspect of the Supreme Court’s decision is its treatment of short-term hotel-like accommodation as a lease. However, it strongly suggests that <a href="http://classic.austlii.edu.au/au/journals/AdelLawRw/2018/10.html">residential tenancy law may regulate</a> whole-of-premises home-share arrangements. That’s likely to come as a shock to Airbnb hosts - owners and renters alike.</p><img src="https://counter.theconversation.com/content/128051/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bill John Swannie was employed as a solicitor at Tenants Victoria from 2010-13.</span></em></p><p class="fine-print"><em><span>Chris Martin receives funding from the Australian Housing and Urban Research Institute (AHURI) and the Australian Research Council (ARC).</span></em></p>In 2016, a Victorian court decided an Airbnb arrangement was a lease. ‘Guests’ could be protected by tenancy law, including against eviction. And in this case the host was evicted for subletting.Dr Bill Swannie, Lecturer in College of Law and Justice, Victoria UniversityChris Martin, Research Fellow, City Futures Research Centre, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1218692019-08-15T03:08:58Z2019-08-15T03:08:58ZThe Melbourne archbishop said he’d rather go to jail than break confession confidentiality. A new bill could send him there<p>Yesterday, Victorian Parliament finally debated a <a href="https://www.premier.vic.gov.au/ensuring-better-protections-for-all-victorian-children/">bill</a> on whether religious ministers should be forced to disclose child abuse admitted in confidence to a priest. </p>
<p>The Victorian <a href="https://www.premier.vic.gov.au/ensuring-better-protections-for-all-victorian-children/">Children Legislation Amendment Bill 2019</a> follows the <a href="https://www.childabuseroyalcommission.gov.au/sites/default/files/final_report_-_recommendations.pdf">recommendation</a> of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017, which revealed the many failures of churches to report allegations of child abuse. </p>
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<a href="https://theconversation.com/should-priests-be-made-to-report-child-abuse-revealed-in-confession-103234">Should priests be made to report child abuse revealed in confession?</a>
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<p>But the proposed law reform has sparked strong opposition from some religious ministers. Melbourne Archbishop <a href="https://www.canberratimes.com.au/story/6327363/vic-wants-to-force-clergy-to-report-abuse/?cs=14231">Peter Comensoli</a> said he would rather go to jail than report a person who confessed committing child sexual abuse. He <a href="https://www.abc.net.au/radionational/programs/breakfast/vic-govt-pushing-for-laws-forcing-priests-to-report-child-abuse/11415902">said</a>: </p>
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<p>I will speak to the person there and then about how they will need to, one, go to the police about this […] and two, I’d be asking at the end of the confession to then repeat what they said outside of the seal so that I can then act. </p>
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<p>And Child Protection Minister <a href="https://www.abc.net.au/radionational/programs/breakfast/vic-govt-pushing-for-laws-forcing-priests-to-report-child-abuse/11415902">Luke Donnellan</a> told the ABC this morning that even the Melbourne Archbishop, the state’s most senior Catholic, is not above the law. He said: </p>
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<p>If people break the law they would be prosecuted. </p>
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<p>Several <a href="https://www.sbs.com.au/news/church-can-protect-children-confession">Australian state governments</a>, including New South Wales and South Australia, have already passed laws legally obliging religious leaders to report confessions of child sexual abuse. Victoria will be following their lead if the law passes through both houses.</p>
<p>The bill proposes several changes to strengthen the protection of children, on top of the proposed amendment of making it mandatory for religious ministries to report child abuse to protection authorities. </p>
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Read more:
<a href="https://theconversation.com/the-causes-of-paedophilia-and-child-sexual-abuse-are-more-complex-than-the-public-believes-94915">The causes of paedophilia and child sexual abuse are more complex than the public believes</a>
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<p>This includes limiting the right of appeal of those whose Working With Children Check application has been rejected if they have been charged with, or convicted of, certain criminal offences. But unlike the amendment for religious ministries, some of these changes are unlikely to attract opposition.</p>
<h2>What are Victoria’s mandatory reporting laws?</h2>
<p><a href="https://aifs.gov.au/cfca/publications/mandatory-reporting-child-abuse-and-neglect">Mandatory reporting</a> refers to the legal requirement for selected professionals to report suspected child abuse to protection authorities. </p>
<p>Under <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/ltobjst10.nsf/DDE300B846EED9C7CA257616000A3571/174AC0FB77A1D247CA258427001CB9C8/$FILE/05-96aa109%20authorised.pdf">Victorian law</a>, mandated reporters must report child abuse if, in the course of practising their profession, they hold a reasonable belief a child has been harmed, or is of significant risk of harm. The harm may be physical or sexual abuse. </p>
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Read more:
<a href="https://theconversation.com/royal-commission-recommends-sweeping-reforms-for-catholic-church-to-end-child-abuse-89141">Royal commission recommends sweeping reforms for Catholic Church to end child abuse</a>
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<p>Mandatory reporters must disclose their suspicion as soon as possible after forming the belief. If they fail to report, then the penalty is currently 10 penalty units, which adds up to a maximum fine of A$1652.20.</p>
<p>Failure to report can also be a criminal offence. Under the Victorian <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/ltobjst10.nsf/DDE300B846EED9C7CA257616000A3571/4CF1A75A67370057CA258448000795CD/$FILE/58-6231aa287%20authorised.pdf">Crimes Act 1958</a>, a person who doesn’t disclose a sexual offence committed against a child under 16 can be imprisoned for up to three years.</p>
<p>Under the <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/LTObject_Store/ltobjst10.nsf/DDE300B846EED9C7CA257616000A3571/174AC0FB77A1D247CA258427001CB9C8/$FILE/05-96aa109%20authorised.pdf">Children, Youth and Families Act</a> (Vic), the main group of professionals listed are doctors, midwives, nurses, police officers, principals, early childhood workers, teachers, youth justice workers, and registered psychologists. </p>
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Read more:
<a href="https://theconversation.com/media-files-investigative-reporter-louise-milligan-on-cardinal-pell-and-redactions-in-the-royal-commissions-report-117981">Media Files: Investigative reporter Louise Milligan on Cardinal Pell and redactions in the Royal Commission's report</a>
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<p>A notable profession missing from this list are members religious ministries, but that might soon change if the Children Legislation Amendment Bill 2019 is passed.</p>
<p>The new bill is controversial because it effectively breaks the so-called “confessional seal”.</p>
<h2>What is the confessional seal?</h2>
<p>The confessional seal is fundamental to the Catholic faith. It’s where a person can ask a priest, in confidence, to forgive them for their sins. </p>
<p>The sacrament is <a href="https://www.catholicscomehome.org/your-questions/what-is-the-sacrament-of-confession/">believed</a> to wash sinners clean from their sins and reconcile with their Lord and the Church.</p>
<p>Breaking the seal is forbidden under <a href="https://www.eurekastreet.com.au/article.aspx?aeid=56176">canon law</a> – the special rules governing the Catholic Church. And a priest who discloses a confession faces punishment, such as <a href="http://www.newadvent.org/cathen/05678a.htm">ex-communication</a>.</p>
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Read more:
<a href="https://theconversation.com/politics-with-michelle-grattan-father-frank-brennan-on-israel-folau-and-religious-freedom-119821">Politics with Michelle Grattan: Father Frank Brennan on Israel Folau and religious freedom</a>
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<h2>Religious liberty vs child protection</h2>
<p>Melbourne Archbishop Peter Comensoli is just one of many <a href="https://www.catholicnewsagency.com/news/australian-priests-willing-to-go-to-jail-rather-than-break-confessional-seal-95237">priests</a> who said they are “willing to go to jail” rather than break the seal.</p>
<p>Others, however, have shown support for the law. Child Protection Minister <a href="https://www.premier.vic.gov.au/ensuring-better-protections-for-all-victorian-children/">Luke Donnellan</a> said: </p>
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<p>It’s pretty simple: if you think a child is being abused, you have to report it. And we’re committed to driving this cultural change to make Victoria safer for our children. </p>
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<p>But the response from some priests has shown that reporting confessions is not that simple. Some <a href="https://www.smh.com.au/national/catholics-vow-end-to-abuse-cover-up-but-refuse-to-break-seal-of-confession-20180831-p500y8.html">refuse</a> to break the seal, seeing the law as an attack on religious freedom. </p>
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Read more:
<a href="https://theconversation.com/women-priests-could-help-the-catholic-church-restore-its-integrity-its-time-to-embrace-them-118115">Women priests could help the Catholic Church restore its integrity. It's time to embrace them</a>
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<p>Attorney General <a href="https://www.canberratimes.com.au/story/6302450/catholic-anger-at-tas-priest-abuse-laws/">Jill Hennessy</a> has rejected the “<a href="https://www.sbs.com.au/news/catholic-church-won-t-break-seal-of-confession-on-abuse">religious liberty</a>” argument, claiming: </p>
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<p>I don’t think in contemporary and mainstream times, knowing what we know now, that we can do anything other than say the rights of children trump anyone’s religious views.</p>
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<p><a href="https://www.abc.net.au/news/2019-08-14/melbourne-catholic-archbishop-petrer-comensoli-on-confessional/11409944">Chrissie Foster</a>, an advocate for anti-abuse, actively has publicly welcomed the proposed law. Her two children were sexually abused by a Catholic priest, and she has described the proposed law as a “breakthrough” and says politicians backing the law should be “congratulated”. </p>
<p>Arguably, if priests had not been exempted from mandatory reporting laws, many sexual abuses could have been prevented. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-catholic-church-is-headed-for-another-sex-abuse-scandal-as-nunstoo-speak-up-111539">The Catholic Church is headed for another sex abuse scandal as #NunsToo speak up</a>
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<p>For instance, consider the case of <a href="https://www.smh.com.au/national/church-must-lift-seal-of-confession-to-help-protect-children-20180615-p4zlmv.html">Michael McArdle</a>, who confessed to 30 priests he had sexually abused children up to 1,500 times. </p>
<p>Complying with the confessional seal, the priests did not report the abuses and instead allegedly advised McArdle to “<a href="https://thenewdaily.com.au/news/national/2018/06/14/confession-child-abuse-royal-commission/">pray more</a>”.</p>
<h2>Only time will tell</h2>
<p>Far too many children have suffered sexual abuse while in the “care” of religious institutions and change is necessary. The <a href="https://www.premier.vic.gov.au/ensuring-better-protections-for-all-victorian-children/">Labor government</a> claimed these new laws will “better protect Victoria’s children”. </p>
<p>But how can such a law protect children in the future if religious minsters choose to <a href="https://www.theguardian.com/world/2018/jun/15/south-australia-catholic-church-to-ignore-law-on-reporting-confessions-of-abuse">ignore</a> it?</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/after-pell-the-catholic-church-must-undergo-genuine-reform-112511">After Pell, the Catholic Church must undergo genuine reform</a>
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<p>With the Catholic Church <a href="https://theconversation.com/should-priests-be-made-to-report-child-abuse-revealed-in-confession-103234">accounting for</a> 61.8% of sexual abuse allegations made about religious institutions investigated by the Royal Commission, the proposed legislation seems pointless without the Catholic Church’s support. </p>
<p>For now, the future of the proposed law and its effectiveness remains uncertain. The bill is expected to pass both houses of Victorian Parliament because it has <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22chamber/hansardr/4fa4c3cb-5541-4547-98c1-81b998c56718/0260%22;src1=sm1">bipartisan support</a>. But only time will tell whether the proposed law passes and whether it will achieve its purpose. </p>
<p>Only one thing remains certain: the victims and survivors of child abuse will remain in our prayers and thoughts. </p>
<hr>
<p><em>A previous version of this article stated the confessional seal is fundamental to Christian religions. This has been updated to clarify that the confessional seal is fundamental to the Catholic faith.</em></p>
<p><em>The article also stated the Catholic Church accounted for 61.8% of sexual abuse allegations investigated by the Royal Commission. This has been updated to clarify that the figure accounts for sexual abuse allegations made about religious institutions investigated by the Royal Commission.</em></p><img src="https://counter.theconversation.com/content/121869/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Al-Alosi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The new bill will make it make it mandatory for priests to report suspected child abuse admitted in confidence.Dr Al-Alosi, Lecturer, School of Law, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1112622019-02-18T22:52:46Z2019-02-18T22:52:46ZNew report shines light on who commits animal cruelty and how they are punished<figure><img src="https://images.theconversation.com/files/259455/original/file-20190218-56229-o6a1ou.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Victoria, the law handles an average of 100 cases of animal cruelty each year.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The Sentencing Advisory Council has just released the <a href="https://www.sentencingcouncil.vic.gov.au/publications/animal-cruelty-offences-victoria">first ever review</a> of how animal cruelty offenders are sentenced in Victoria.</p>
<p>That report was developed in response to growing community concern about how animal cruelty offenders are sentenced. Several cases have received <a href="https://www.abc.net.au/news/2018-10-16/penguin-killers-sentence-not-tough-enough-say-welfare-groups/10379222">significant media attention</a>. The report was also designed to provide an evidence base for the government when it overhauls Victoria’s animal cruelty legislation this year, which it <a href="https://www.premier.vic.gov.au/a-modern-plan-to-better-protect-our-animals/">described in 2018</a> as “outdated”.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/australia-increasingly-uncomfortable-with-animal-cruelty-3439">Australia increasingly uncomfortable with animal cruelty</a>
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<h2>What is animal cruelty?</h2>
<p>One of the most noteworthy findings in the report is that most animal cruelty offending sentenced in Victoria does not involve deliberate or malicious forms of cruelty (such as beating or torturing a pet).</p>
<p>Instead, the majority of animal cruelty resulting in sentences in Victoria is the result of neglect-related behaviours, such as failing to provide sufficient food, drink, water, shelter or veterinary treatment to an animal. That type of offending made up at least half, but probably closer to three-quarters, of all animal cruelty offences between 2008 and 2017.</p>
<p>This is consistent with observations in RSPCA Victoria’s <a href="https://rspcavic.org/documents/About%20us/Annual%20Report/2016/RSPCAVIC_15-16_AnnualReport.pdf">annual report</a>, which noted that “the majority of reports that we receive seem to be the result of ignorance or inability rather than malice”.</p>
<h2>Who committed these offences?</h2>
<p>From 2008 to 2017, at least 998 offenders were sentenced for animal cruelty in Victoria. That’s about 100 per year. Men represented almost three-quarters of those offenders, and a quarter were women. Less than 1% were corporations. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=281&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=281&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=281&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=353&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=353&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259195/original/file-20190215-1745-x2j5o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=353&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://www.sentencingcouncil.vic.gov.au/">Sentencing Advisory Council of Victoria</a></span>
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<p>To put this in context, this is slightly less than the rate at which men are sentenced for all offending in Victoria. In the most recent financial year, Victorian courts sentenced <a href="https://www.sentencingcouncil.vic.gov.au/statistics/sentencing-statistics/people-sentenced-magistrates-court">over 100,000 cases</a>. Four out of five offenders in those cases were male (79%).</p>
<p>However, there was a subgroup of animal cruelty offenders – those whose case was flagged as involving family violence – who were much more likely to be male. Of the 231 animal cruelty cases sentenced in 2016 and 2017, 15% of cases were flagged as related to family violence (35 cases). And of those 35 offenders, 33 were male.</p>
<h2>Who prosecutes animal cruelty?</h2>
<p>Two agencies, Victoria Police and the Office of Public Prosecutions, prosecute most crimes in Victoria. However, the responsibility for prosecuting animal cruelty offences also falls on local councils, two additional government departments and RSPCA Victoria.</p>
<p>In fact, RSPCA Victoria is one of the only non-government bodies in the country with the power to prosecute people for criminal offences. It was responsible for prosecuting more than half of all animal cruelty cases in Victoria in the past ten years.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=323&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=323&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=323&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=406&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=406&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259197/original/file-20190215-1717-mr5ico.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=406&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://www.sentencingcouncil.vic.gov.au/">Sentencing Advisory Council of Victoria</a></span>
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<p>Victoria Police prosecuted the second-largest number of cases. Police usually discover animal cruelty when a neighbour has reported what they think is animal cruelty, or when officers enter a house for some other reason, such as executing a search warrant or responding to a report of family violence.</p>
<h2>How many animal cruelty offences were there?</h2>
<p>Nearly 3,000 charges of animal cruelty were sentenced in Victoria from 2008 to 2017. But this does not represent all animal cruelty that occurred in the state during those ten years. A lot of animal cruelty is never discovered or investigated, in large part because the victims are unable to speak for themselves. </p>
<p>There are also many complaints about animal cruelty that don’t result in a sentence being imposed. For example, between 2011 and 2017, 79,000 complaints of animal cruelty were to the various prosecuting agencies. Those complaints led to just over 6,000 charges being laid, which in turn led to nearly 2,800 offences being sentenced. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259418/original/file-20190217-56232-156wdtg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://www.sentencingcouncil.vic.gov.au/">Sentencing Advisory Council of Victoria</a></span>
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<p>There are good reasons for this disparity between the number of complaints and charges sentenced. For one thing, many complaints of animal cruelty don’t actually constitute cruelty, such as a neighbour complaining about a dog being left in the backyard for the day.</p>
<p>More importantly, though, the legislation these agencies are enforcing is <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2018/245.html">“directed at animal welfare rather than enforcement of the criminal law”</a>. In other words, a criminal justice response is a last resort and in many cases will not be the most appropriate way of ensuring animal welfare.</p>
<h2>How were animal cruelty offences sentenced?</h2>
<p>Of the 3,000 charges that were sentenced, 60% resulted in a fine and 4% in a term of imprisonment. The average fine was about $1,400 and the average prison term was three months.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=256&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=256&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=256&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=322&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=322&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259175/original/file-20190214-1748-dxv34o.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=322&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://www.sentencingcouncil.vic.gov.au/">Sentencing Advisory Council of Victoria</a></span>
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<p>The high rate of fines for animal cruelty warrants further consideration. Not only has the Sentencing Council’s <a href="https://www.sentencingcouncil.vic.gov.au/publications/imposition-and-enforcement-court-fines-and-infringement-penalties-victoria">previous research</a> found that 40% of fines in Victoria are never paid, but more importantly, if the offender is a farmer who is struggling financially and has been unable to water, feed or medicate their livestock, it would seem incongruous to burden them further with a monetary penalty. Alternatively, if the offender engaged in more deliberate acts of cruelty, this would usually indicate that some form of rehabilitation is needed.</p>
<p>When sentencing an animal cruelty offender, courts in Victoria have an option available to them known as a <a href="http://www5.austlii.edu.au/au/legis/vic/consol_act/poctaa1986360/s12.html">“control order”</a>. This is an order that either prohibits or restricts the offender’s ability to own or be in charge of animals. It can also place conditions on their ability to have animals. <a href="http://agriculture.vic.gov.au/agriculture/animal-health-and-welfare/animal-welfare/record-of-prosecutions/trawalla-livestock-owner-convicted-for-sheep-cruelty">For example</a>, one farmer was ordered to undertake a sheep management course and pay for a vet to regularly inspect any livestock under his care.</p>
<p>The council found that a control order was imposed in just 20% of animal cruelty cases. The rate was particularly low in cases prosecuted by Victoria Police (less than 1%). Yet when the council spoke to prosecutors responsible for animal cruelty cases, they said that often the most desirable outcome of the criminal proceedings is to have a control order imposed.</p>
<p>There is a question, though, about whether agencies would have enough resources to monitor control orders if they were imposed more often. That would involve a lot of extra work, which would in turn require additional resources.</p>
<h2>Where to from here?</h2>
<p>The findings in this report are consistent with similar research in <a href="https://www.animallaw.info/sites/default/files/australia_journal_vol3.pdf">Queensland</a>, <a href="http://www.austlii.edu.au/au/journals/CICrimJust/2002/7.pdf">New South Wales</a> and most recently <a href="https://www.mdpi.com/2076-2615/8/12/236">South Australia</a>. Men are the most common offenders of animal cruelty, and fines are the most common sentence imposed. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/penalties-for-animal-cruelty-double-in-sa-but-is-this-enough-to-stop-animal-abuse-108021">Penalties for animal cruelty double in SA, but is this enough to stop animal abuse?</a>
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<p>It is hoped this report will prompt discussion about the role of the criminal justice system in responding to animal cruelty. Given the high rate of neglect-related offending – which is usually because the person either didn’t know how to care for their animals or didn’t have the resources to do so – is the criminal law the best response to those sorts of behaviours? And if it is, what should that response look like?</p>
<p>We also need to consider if monetary penalties are the best way to protect animals from similar offending in the future, or if it would be better to place more emphasis on control orders and provide agencies with the resources they need to monitor them.</p><img src="https://counter.theconversation.com/content/111262/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul McGorrery is a senior legal policy officer at the Victorian Sentencing Advisory Council.</span></em></p><p class="fine-print"><em><span>Arie Freiberg receives funding from the Australian Research Council</span></em></p>The Victorian Sentencing Advisory Council’s new report reveals that most cases of animal cruelty handled by the law are in fact animal neglect.Dr Paul McGorrery, PhD Candidate in Criminal Law, Deakin UniversityArie Freiberg, Emeritus Professor of Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1091812018-12-21T06:39:55Z2018-12-21T06:39:55ZWhen a fair trial could be at risk, suppression is the order of the day<figure><img src="https://images.theconversation.com/files/251846/original/file-20181220-103660-4c9hw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The digital age has made the idea of a fair trial, balanced with open justice, even more difficult.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Open justice is a <a href="https://pursuit.unimelb.edu.au/articles/suppression-orders-vs-open-justice">fundamental principle of our system of government</a> and central to maintaining confidence in the justice system. But in many of the most high profile trials, when public interest is high, open justice comes into conflict with the potential of negative publicity about an accused to prejudice a fair trial. In recent weeks, the question of how to balance a free press and a fair trial has been hotly debated. But it has been a topic of controversy for many decades.</p>
<p>What happens if jurors read about an accused’s previous convictions, or access material that is not part of the trial? Will jurors listen when the judge tells them to ignore it? In the digital age, can suppression orders even work when they are routinely ignored overseas? </p>
<p>Numerous judges and lawyers working in the criminal justice system have disagreed about whether we should retain juries to ensure accused people are judged by their peers. In his <a href="https://s3.ap-southeast-2.amazonaws.com/hdp.au.prod.app.vic-engage.files/9215/2211/1859/Review_of_the_Open_Courts_Act_2013_-_March_2018.pdf">review of the Victorian Open Courts Act</a> last year, former Supreme Court Justice Frank Vincent noted that the Walsh Street murder trial jury in 1990 delivered acquittals, despite intense publicity and community discussion.</p>
<p>Opponents of juries will cite the secrecy of their deliberations, and examples of jurors befriending accused criminals on social media, or telling their followers they planned to convict. Then there is the argument that juries cannot be adequately protected from publicity that will make a fair trial impossible. After Adrian Bayley was charged with murdering Jill Meagher, the police and Meagher’s husband were forced to <a href="https://www.theage.com.au/national/victoria/victims-husband-asks-for-silence-on-social-media-20120928-26r3o.html">plead with the public to remove Facebook hate pages</a> directed at Bayley.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375">You wouldn't read about it: Adrian Bayley rape trials expose flaw in suppression orders</a>
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<p>Had Bayley not pleaded guilty, how might jurors have ignored the readily available information about his criminal past? Then <a href="https://www.smh.com.au/opinion/valid-reasons-for-suppression-orders-victoria-chief-justice-20151017-gkbkvu.html">Victorian Chief Justice Marilyn Warren said in 2015</a> that suppression orders were made in Bayley’s case to protect a fair trial.</p>
<p>The capacity of members of the public to derail a trial through online publishing is a relatively recent development. Reporting at the Supreme Court in 1989 was a long way from today’s global digital village. The main news agencies were the daily newspapers, the ABC and the wire service AAP. Journalists took notes in court to record sentencing remarks, although some judges would allow reporters to use tape recorders for accuracy’s sake.</p>
<p>In those days, suppression orders were relatively rare. Justice Bernard Teague wrote in 1999 that he had granted non-publication applications, but had also warned journalists about the prospect of being in contempt of court through publication. He attributed the appointment of a courts information officer (former Age court and law reporter Prue Innes) as a major reason for the lack of contempt cases in Victoria in the 1990s. </p>
<p>It might also be news organisations remembered the $80,000 fine given to The Age publishers and editor in 1981 for a feature article that referred to two brothers who were facing trial on drugs charges. Writing for The Age, Innes reported the penalty was the highest for contempt in any Australian court.</p>
<p>Another brake on suppression orders at the Victorian Supreme Court was the presence of reporters in the building. Media lawyers could be called quickly to court, and be given a detailed summary of the suppression arguments while on the way. It meant they could make specific submissions instead of general points about open justice and potentially improve their prospects. Judges knew the regular court reporters by sight, and could anticipate their interest.</p>
<p>In the mid-to-late 1990s, the law firm Corrs Chambers Westgarth published the glossy magazine called Medialine, which featured numerous articles about media law issues. In one edition, Sydney barrister Angela Browne quoted High Court decisions supporting jurors’ ability to put aside outside information about a case and reach decision based on the evidence. She wrote:</p>
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<p>Jurors are not expected to have extraordinary qualities of impartiality or fairness. What is expected of them is that, having given a solemn undertaking to do so and being properly directed by a judge, they will return a true verdict according to the evidence. </p>
</blockquote>
<p>London law firm partner Alaisdair Pepper wrote in 1995 about UK contempt of court rules restricting international pre-trial reporting of the <a href="https://www.independent.co.uk/news/the-horrific-secrets-of-25-cromwell-street-1576291.html">Rosemary West multiple murders</a> case. He acknowledged schools and businesses received news bulletins from other European countries. He said:</p>
<blockquote>
<p>In years to come attempts to keep the public in Great Britain in ignorance of what the rest of the world knows about a trial of considerable public interest in this country may render the law looking more and more out of touch.</p>
</blockquote>
<p>We might expect these sentiments in a publication that regularly featured media lawyers and journalists. In 1997, Justice Bill Gillard delivered much-repeated remarks about writers commenting during legal proceedings when fining The Australian and a reporter over a column published during the Supreme Court fraud trial of Coles Myer chief Brian Quinn.</p>
<p>Even the most unpopular defendant is entitled to a fair hearing,“ Justice Gillard said. "I would expect that a first-year journalist would know and understand the sub judice rule.” He continued:</p>
<blockquote>
<p>All members of the media would be well advised on the basis that, other than reporting the actual proceedings of the court, nothing should be stated in the media concerning the trial, the court, the accused or witnesses. If it is thought that a fact or a comment concerning the trial should be published, then legal advice from those experienced in media law should be consulted.</p>
</blockquote>
<p>By 2009, the world, and Victorian court reporting, had changed. Commercial lawyer Isolde Lueckenhausen wrote in <a href="https://search.informit.com.au/documentSummary;dn=201104693;res=IELAPA">Precedent magazine </a>that suppression orders applying to all community members had replaced sub judice contempt as the main method of attacking prejudicial publication. A report commissioned by major media organisations showed Victoria had the largest number of orders made in 2008, although South Australia had proportionally more when population was considered.</p>
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Read more:
<a href="https://theconversation.com/law-and-order-is-no-get-out-of-jail-card-for-floundering-politicians-107701">Law and order is no get-out-of-jail card for floundering politicians</a>
</strong>
</em>
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<p>Facebook publications were an issue when a man was <a href="https://www.abc.net.au/news/2012-04-27/black-saturday-arsonist-sentenced-to-28holdholdhold29/3976564">charged with arson</a> over the 2009 Victorian bushfires, a fictionalised television series was suppressed in part while <a href="https://www.smh.com.au/entertainment/underbelly-appeal-shot-out-of-court-20080326-gds6tw.html">underworld court proceedings</a> were continuing, and <a href="https://www.smh.com.au/national/trial-and-error-20080917-4imf.html">terror trials </a>attracted suppression orders. Lueckenhausen said:</p>
<blockquote>
<p>Suppression orders do not stop discussion or prevent determined people from getting information from internet sites. However, they do stop the gradual discussion and analysis of issues that occur with contemporaneous reporting.</p>
</blockquote>
<p>She quoted then New South Wales Chief Justice Jim Spigelman, who suggested temporary removal of references to an accused and sequestering jurors might be necessary to support fair trials. She said Justice Spigelman saw the heart of the issue was the conflict between two principles mentioned at the start of this article – open justice and a fair trial.</p>
<p>Recently, the <a href="https://www.theage.com.au/national/victoria/andrews-government-considers-judge-only-trials-for-criminal-cases-20181213-p50m5u.html">Victorian government asked the Department of Justice to inquire into the prospect of judge-alone trials</a> as an option for those charged with criminal offences. It would provide accused people and their lawyers with an alternative if they were concerned about the possible effect of social and mainstream media publications. But such a move could also open judges to more scrutiny, attack and commentary.</p><img src="https://counter.theconversation.com/content/109181/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Gregory covered courts and legal issues for most of his 28-year career as a newspaper and online reporter. In late 1988, he moved to Victoria where he reported for The Age newspaper for more than 21 years. Now, he teaches journalism at La Trobe University, and is investigating through a PhD whether suppression orders are relevant in a digital age.
</span></em></p>While media outlets rail against being prohibited from reporting on certain cases, it is about striking a difficult balance between open justice and a fair trial.Peter Gregory, Journalism Lecturer, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/974592018-06-05T02:07:40Z2018-06-05T02:07:40ZWhy industrial manslaughter laws are unlikely to save lives in the workplace<p>In May, Victorian Premier <a href="http://www.abc.net.au/news/2018-05-26/daniel-andrews-criminal-offence-industrial-manslaughter/9803490">Daniel Andrews announced</a> that a re-elected Labor government would legislate for a new criminal offence of workplace manslaughter.</p>
<p>Designed to severely punish companies that cause industrial deaths, penalties would not only include far greater fines than currently exist but, significantly, could result in 20 years’ imprisonment for employers whose negligence has caused the deaths of their workers, visitors to a workplace, or passersby. Andrews said:</p>
<blockquote>
<p>It’s my sincerest hope that these laws will never need to be used … that instead, they’ll change our workplaces and change our culture.</p>
</blockquote>
<p>The announcement was met with a standing ovation by delegates at the Labor conference. John Setka, the state secretary for the Construction, Forestry, Mining and Energy Union, was gleeful: </p>
<blockquote>
<p>The current arrangements, there’s so many loopholes there. [S]ome employers … can kill people and never see the inside of a court. Or pay some fine somewhere … it’s almost become like a bit of a joke.</p>
</blockquote>
<h2>Similar laws across Australia</h2>
<p>Andrews’ idea is hardly new. Workplace (or “industrial”) manslaughter bills have been debated in Australian parliaments over many years. They have also found their way into the law, but only in two jurisdictions: Queensland and the ACT.</p>
<p>Elsewhere, prosecutions proceed under occupational health, safety and welfare laws, which can include substantial fines and terms of imprisonment for grossly culpable behaviour. Notably, South Australia has seen separate industrial manslaughter bills introduced by Nick Xenophon and later the Greens <a href="http://www.abc.net.au/news/2004-12-03/union-calls-for-industrial-manslaughter-laws/596604">consistently defeated</a> over the last 14 years.</p>
<p><a href="http://www.corrs.com.au/publications/corrs-in-brief/industrial-manslaughter-now-a-crime-in-queensland/">Queensland passed industrial manslaughter laws</a> late last year. These were apparently in response to the deaths of four people at the Dreamworld theme park on the Gold Coast in October 2016, and the deaths of two workers at the Eagle Farm racecourse earlier that year.</p>
<p>But the Queensland laws don’t apply to the mining sector (where one might assume a high risk of injury exists), nor do they apply to any person other than an employee, which is a little odd, given the Dreamworld victims were visitors.</p>
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<strong>
Read more:
<a href="https://theconversation.com/construction-workers-safer-when-they-ditch-the-manual-study-55761">Construction workers safer when they ditch the manual: study</a>
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</em>
</p>
<hr>
<p>The ACT became the first jurisdiction in Australia to introduce the <a href="http://www.legislation.act.gov.au/a/2003-55/20040301-10529/pdf/2003-55.pdf">offence of industrial manslaughter</a> in 2004. Its legislation, taking a lead from the blueprint provided by amendments to the Commonwealth Criminal Code Act in 1995, is couched in very broad terms. It is found in Part 2A of the ACT Crimes Act, read with Part 2.5 of the Criminal Code.</p>
<p>Significantly, the ACT law says prosecutors do not have to prove negligence by an act or an omission. They could <a href="http://classic.austlii.edu.au/au/journals/ALRS/2010/1.html">simply show that</a> a corporate culture existed within the employer corporation that directed, encouraged, tolerated or led to noncompliance with the law, whereupon the fatal event occurred.</p>
<p>That is, a company can be convicted of industrial manslaughter in the ACT for neglect that’s attributable to a group of people. Further, any manager who has presided over that <a href="https://www.routledge.com/European-Developments-in-Corporate-Criminal-Liability/Gobert-Pascal/p/book/9780415620666">culture</a> can be sentenced to a prison term.</p>
<p>These provisions have “teeth”. The Queensland legislation, in contrast, says nothing about penalising a deficient culture, nor anything about aggregating responsibility. If the Victorian legislation follows suit, it will be silent on these issues as well.</p>
<p>It should be noted that, in 14 years, not one prosecution has proceeded under the ACT legislation. One reason might be because Prime Minister John Howard’s government moved quickly after the legislation was passed to exempt all Commonwealth public servants from the provisions of the act.</p>
<h2>Lack of deterrence</h2>
<p>There is another issue that needs to be dealt with here: the reliance industrial manslaughter legislation places on the threat of imprisonment as a deterrent. True, the threat of this sanction sends a message about how strongly society condemns behaviour that trifles with the lives of workers. The standing ovation at the Victorian Labor conference highlights the strong preference that exists for retributive punishment for grossly negligent work practices.</p>
<p>But unless jail time is made mandatory, the <a href="http://theconversation.com/if-a-company-causes-death-at-sea-dont-assume-that-means-jail-time-37512">likelihood of a court giving a prison sentence</a> to a senior officer is very low. </p>
<p>Very few corporate managers have a criminal record. Many can boast a distinguished history of public and community service. Character witnesses will be lining up at the courtroom door. Defence counsel will tell the judge that their client’s conduct will dramatically reduce his or her ability to ever be able to work in their chosen profession again, and that is punishment enough. </p>
<p>Moreover, the ACT Criminal Code has a defence in section 51(3) – namely, if a defendant has exercised “appropriate diligence” to prevent negligence.</p>
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<strong>
Read more:
<a href="https://theconversation.com/why-random-identification-checks-at-airports-are-a-bad-idea-96784">Why random identification checks at airports are a bad idea</a>
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</em>
</p>
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<p>This is a key problem for those promoting industrial manslaughter legislation: there is little evidence that threatening managers with greater prison sentences than those found under existing health and safety legislation is going to change behaviours and eliminate dangerous practices. Moreover, it is impossible to say whether the threat provided by the ACT’s much broader-ranging criminal liability has had any deterrent effect. </p>
<p>One also might argue that putting in place better mechanisms to prevent injuries before they occur (such as site inspections, enhanced safety training requirements, and industry awards) is a far better use of resources than paying prosecutors, judges and correctional staff to punish people after a tragedy.</p>
<p>It is often said that the mere mention of industrial manslaughter laws (with imprisonment as a possible result) raises the likelihood that collaboration between employers and employees will stall. And this would be to the detriment of health and safety in the workplace generally.</p>
<p>The debate over the value of workplace manslaughter laws will continue to feature strongly in employment law and criminal law circles, especially as the Victorian legislation comes before the parliament.</p>
<p>Certainly one can argue that the foreshadowed Andrews legislation will have an important symbolic effect. But it is a long bow to draw to say that simply having an industrial manslaughter offence on the statute books in Victoria, in whatever form it finally takes, will by itself lower workplace death rates.</p><img src="https://counter.theconversation.com/content/97459/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from The Australian Research Council. He is affiliated with the ALP. </span></em></p>Simply having an offence of industrial manslaughter on the statute books cannot by itself lower workplace death rates.Rick Sarre, Adjunct Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/881512017-11-28T19:09:07Z2017-11-28T19:09:07ZWhy Victoria should rethink the abolition of defensive homicide<figure><img src="https://images.theconversation.com/files/196625/original/file-20171128-2046-17o42si.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The controversial offence of defensive homicide was introduced in Victoria in 2005, and abolished in 2014.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In 2005, a <a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/edfb620cf7503d1aca256da4001b08af/F0B7C8D5D930EE26CA2570C1001F677F/$FILE/05-077a.pdf">comprehensive package</a> of “trendsetting feminist … reforms” was introduced in Victoria, including a new offence of defensive homicide. </p>
<p>Sitting between murder and manslaughter in terms of legal and moral culpability, a person could be convicted of defensive homicide rather than murder if they killed with the genuine but unreasonable belief that they were acting in self-defence. </p>
<p>Defensive homicide was introduced for two reasons:</p>
<ul>
<li><p>to provide a “safety net” between complete acquittal (self-defence) and murder for women who killed an abusive male partner; and</p></li>
<li><p>to provide a “halfway house” for offenders with mental illness that did not amount to the strict mental impairment defence.</p></li>
</ul>
<p>It was considered a controversial offence, subject to two government reviews before its <a href="http://www.abc.net.au/news/2014-06-22/vic-dumps-law-that-allowed-men-to-27get-away-with-murder27/5541670">abolition in November 2014</a>. </p>
<h2>Removing the safety net for abused women</h2>
<p>The decision to abolish defensive homicide fitted neatly into the then-Liberal government’s tough law-and-order agenda. The dominant voices in the debate claimed the offence was being used and <a href="http://www.heraldsun.com.au/news/law-order/killer-blow-defensive-homicide-laws-hijacked-by-thugs-will-be-scrapped/news-story/eee745ea21f8c176a337ea28252aee5e">“abused” by “violent thugs”</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/legitimising-lethal-male-violence-why-defensive-homicide-needs-to-be-abolished-14578">Legitimising lethal male violence: why defensive homicide needs to be abolished</a>
</strong>
</em>
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<p>Often cited as a primary example is the case of <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2010/202.html?context=1;query=luke%20middendorp;mask_path=">Luke John Middendorp</a>, who killed his female ex-partner. </p>
<p>This narrative emerged despite Middendorp being the first and only male convicted of defensive homicide for killing an intimate partner, and despite numerous women’s and family violence advocates desperately campaigning to <a href="http://www.dvrcv.org.au/knowledge-centre/our-blog/%25E2%2580%2598defensive-homicide%25E2%2580%2599-safety-net">retain the offence</a>. They did so because it was found to be providing a “safety net” option for women who killed in response to family violence.</p>
<p>In particular, the offence recognised that women often encountered difficulty establishing their offending as self-defence (for example, when the victim was killed while asleep), but their offending warranted a <a href="http://www.dvrcv.org.au/knowledge-centre/our-publications/discussion-papers/justice-or-judgement">conviction less than murder</a>.</p>
<h2>Removing the halfway house for mentally impaired offenders</h2>
<p>Recent <a href="http://law.unimelb.edu.au/__data/assets/pdf_file/0005/2099390/09-Ulbrick,-Flynn-and-Tyson.pdf">longitudinal research</a> has found very high rates of mental illness among homicide offenders. Of the 33 defensive homicide convictions while the law was available, 20 offenders presented evidence of a history of mental illness or impairment. </p>
<p>In Victoria, the mental impairment defence provides a finding of not guilty by reason of mental impairment. But this defence is very (and necessarily) restrictive, used in <a href="http://www.lawreform.vic.gov.au/sites/default/files/Review_of_the_Crimes_Mental_Impairment_and_Unfitness_to_be_Tried_Act_0.pdf">about 1% of higher court cases</a>.</p>
<p>In the past 16 years, a finding of not guilty by reason of mental impairment in homicide cases has occurred exclusively where the primary diagnosis was schizophrenia. It has never been used for an individual with a cognitive impairment. </p>
<p>This is because the test requires the accused to not understand either the nature and quality of their conduct, or that their conduct was wrong. This in turn means “<a href="https://theconversation.com/how-the-insanity-defence-against-a-murder-charge-works-50188">the vast majority of people with serious mental illness … fail this test</a>”. </p>
<p>Due to the disproportionate rates of mental illness among homicide offenders, it is important there are appropriate legal avenues to respond to this type of offender in a way that captures their legal culpability, while recognising the reduced moral culpability. Defensive homicide <a href="http://law.unimelb.edu.au/__data/assets/pdf_file/0005/2099390/09-Ulbrick,-Flynn-and-Tyson.pdf">achieved this</a>. </p>
<h2>Without defensive homicide</h2>
<p>Without defensive homicide:</p>
<ul>
<li><p>offenders with significant cognitive impairment have no alternative between murder and manslaughter; and</p></li>
<li><p>a woman who kills a violent male partner faces an “all or nothing” choice of arguing self-defence at trial and risking a murder conviction, or pleading guilty to manslaughter. Bear in mind that prosecutors may not accept an offer to plead guilty to manslaughter where there is evidence of an intention to kill (for example, where there are multiple blows with a weapon). </p></li>
</ul>
<p>The focus on “<a href="http://www.theaustralian.com.au/opinion/defensive-homicide-law-akin-to-getting-away-with-murder/story-e6frg6zo-1226287567232">men getting away with murder</a>” leading up to defensive homicide’s abolition shut down any nuanced inquiry into the immediate and extended impacts of its removal. This has left Victoria as the only state other than Tasmania without a “halfway house” between murder and manslaughter. </p>
<hr>
<p><strong><em>Read more: <a href="https://theconversation.com/defensive-homicide-laws-crucial-for-domestic-violence-cases-21463_">Defensive homicide laws crucial for domestic violence cases</a></em></strong></p>
<hr>
<p>Defensive homicide did not negate the legal responsibility of accused persons, nor did it mean they avoided punishment. Rather, it offered an opportunity for the law to determine the extent to which the offender was morally culpable for their conduct. </p>
<p>In this way, it allowed for the lower moral culpability of offenders, where relevant, to be taken into consideration in both the type of conviction recorded and the sentence imposed. </p>
<p>Having an alternative offence that can capture these circumstances doesn’t mean all offenders with a mental impairment or who kill in response to prolonged abuse will have a guilty plea accepted by the prosecution, or be found guilty of the lesser offence at trial. </p>
<p>Indeed, despite the controversy surrounding defensive homicide, safeguards were in place to prevent misuse. And the offence was used rarely – with the majority of mentally impaired offenders found to be within the reach of ordinary law. </p>
<p>In the absence of defensive homicide, the law in Victoria is fundamentally constrained in its ability to determine criminal culpability according to degrees of impairment and abuse. This matter of degree is important, as it appropriately reflects the circumstances of the offender and the offence.</p>
<p>The current all-or-nothing system lacks the sophistication necessary to provide appropriate defences (or offences) that recognise the reality of the complex conditions and circumstances of homicide. The law requires greater flexibility to deal with homicide offences.</p><img src="https://counter.theconversation.com/content/88151/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Asher Flynn receives funding from the Australian Research Council and the Criminology Research Council.</span></em></p><p class="fine-print"><em><span>Danielle Tyson has previously received funding from the Victorian Women's Benevolent Trust and the Legal Services Board of Victoria. </span></em></p><p class="fine-print"><em><span>Madeleine Ulbrick does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Abolishing defensive homicide in Victoria was a mistake has left the law inflexibile in dealing with homicide offences.Asher Flynn, Senior Lecturer in Criminology, Monash UniversityDanielle Tyson, Senior Lecturer in Crimniology, Deakin UniversityMadeleine Ulbrick, PhD Candidate, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/725702017-02-19T23:41:59Z2017-02-19T23:41:59ZShould Victoria introduce a swifter model of sentencing family violence offenders?<figure><img src="https://images.theconversation.com/files/157285/original/image-20170217-4236-1hsvcm2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A swift, certain and fair approach is designed to encourage offenders to comply with the conditions of their sentence.</span> <span class="attribution"><span class="source">from shutterstock.com</span></span></figcaption></figure><p>Offenders in Victoria, and elsewhere for that matter, often wait months or years between the date they commit a crime and the date a court sentences them. The delay is there for a reason; a number of <a href="http://www.lawhandbook.org.au/03_06_03_steps_in_a_criminal_prosecution/">important legal steps need to take place</a> before someone is sentenced.</p>
<p>But the time lag can also diminish the effectiveness of the eventual punishment imposed on an offender. This is because deterrence to criminal behaviours is more effective when the would-be offender perceives their chances of being caught as high, and when they believe a sanction would be imposed <a href="http://onlinelibrary.wiley.com/doi/10.1111/1745-9133.12256/full">sooner rather than later</a>.</p>
<p>Fast responses from the criminal justice system are particularly important for family violence offenders, who are <a href="http://www.bocsar.nsw.gov.au/Pages/bocsar_media_releases/2016/mr-Violent-Criminal-Careers-A-retrospective-longitudinal-study.aspx">more likely to re-offend sooner</a> than other offenders. They also usually re-offend <a href="https://www.sentencingcouncil.vic.gov.au/news-media/media-releases/family-violence-offenders-more-likely-to-reoffend-than-other-offenders">with further family violence</a>.</p>
<p>In May 2016, a <a href="http://www.rcfv.com.au/Report-Recommendations">report released</a> by the Victorian Government’s Royal Commission into Family Violence recommended <a href="https://www.sentencingcouncil.vic.gov.au/">the Sentencing Advisory Council</a> investigate a <a href="https://www.sentencingcouncil.vic.gov.au/projects/swift-and-certain-approaches-to-family-violence-sentencing">different approach</a> to sentencing family violence offenders, specifically a “swift and certain” approach.</p>
<p>This approach is designed to encourage offenders, who are serving their sentence in the community, to comply with the conditions of their sentence. It does so by responding to non-compliance with fast, consistent and low-level sanctions.</p>
<h2>What is a ‘swift, certain and fair’ approach?</h2>
<p>“Swift, certain and fair” approaches are specific programs developed in the United States with a number of key features, including:</p>
<ol>
<li><p>Targeting offenders serving a sentence in the community who are required to comply with certain conditions, such as being abstinent from drugs and alcohol</p></li>
<li><p>Identifying which conditions should receive zero-tolerance responses when an offender fails to comply</p></li>
<li><p>Holding a warning hearing to make sure offenders know what is expected of them and what the consequence of non-compliance will be</p></li>
<li><p>Using special measures to detect non-compliance on a regular basis, such as twice-weekly drug tests</p></li>
<li><p>Responding to non-compliance quickly, usually with a court holding a non-compliance hearing with 72 hours or so</p></li>
<li><p>Imposing fixed sanctions for non-compliance, in accordance with what they were told at the warning hearing. For example, in <a href="http://www.swiftcertainfair.com/portfolio/hope-hawaii/">Hawaii’s HOPE probation program</a>, an offender will typically receive two to three days in custody if they admit the violation, ten days if they deny it, and 30 days if they abscond.</p></li>
</ol>
<p>The two most commonly discussed “swift, certain and fair” approaches in the United States have been Hawaii’s HOPE program – implemented in response to high rates of drug use and drug-related offending – and <a href="http://apps.sd.gov/atg/dui247/">South Dakota’s 24/7 Sobriety Project</a> – in response to high rates of alcohol use and drink-driving related offending.</p>
<h2>Do these programs work?</h2>
<p>In jurisdictions where a “swift, fair and certain” approach has been implemented, it has usually been in response to the perception current practices weren’t working. In Hawaii, for example, the HOPE program came about because offenders were seen to be breaching probation conditions several times before being brought back to court. </p>
<p>Evidence for the effectiveness of the “swift, certain and fair” approach is mixed. Initial <a href="https://www.nij.gov/topics/corrections/community/drug-offenders/pages/hawaii-hope.aspx">research in 2007 and 2008</a> found probationers in Hawaii on HOPE were 72% less likely to have positive drug tests. They were 55% less likely to be arrest again, 53% less likely to have their probation revoked, and 61% less likely to miss appointments with their probation officers. </p>
<p>The same researchers found similar results in a <a href="http://beforeitsnews.com/crime-all-stars/2016/09/hope-ii-a-follow-up-to-hawaiis-hope-evaluation-2457394.html">follow-up evaluation in 2010–2014</a>.</p>
<p>However, <a href="http://onlinelibrary.wiley.com/doi/10.1111/1745-9133.12248/full">more recent research</a> indicates Hawaii’s positive results may not be able to be replicated elsewhere.</p>
<p>That research investigated four HOPE-like programs in four US states and compared probationers on the program with probationers who weren’t on the program. The researchers found although HOPE-like programs were more resource-intensive (both in terms of time and money), they did not reduce re-offending rates or rates at which offenders breached the conditions of their probation.</p>
<h2>What about family violence?</h2>
<p>Traditionally “swift, certain and fair” approaches have been used to exclusively or primarily target drug and alcohol offenders. There is not currently any SCF program in operation, in Australia or elsewhere, that exclusively targets family violence offending. </p>
<p>Some SCF programs indirectly include family violence offenders in their cohort by, for example, targeting offenders with drug and alcohol issues. South Dakota’s alcohol-targeted program was found to <a href="http://www.rand.org/pubs/external_publications/EP51155.html">reduce family violence arrests</a> over a five-year period by nine per cent.</p>
<p>Victoria’s Drug Court, which also <a href="https://www.magistratescourt.vic.gov.au/drug-court">targets offenders</a> with substance-abuse issues, has a similar model to a “swift, certain and fair” approach. But there are a few key differences. </p>
<p>First, Drug Court participants are required to attend regular court hearings, while participants in a SCF program usually only come back to court if they have been non-compliant.</p>
<p>Second, the Drug Court uses a system of accrued sanctions, such that if an offender’s accrued prison days, for example, exceed a week, the offender is required to serve that time in custody. Participants in a SCF program are immediately sanctioned for each and every violation.</p>
<p>Further, even if programs in other jurisdictions work well, there is no guarantee they can be transplanted into an entirely different context and be just as effective. </p>
<p>There are <a href="https://theconversation.com/swift-and-certain-sanctions-does-australia-have-room-for-hope-40158">significant differences</a> between American and Australian criminal justice systems. These include the relationship between correctional services and the courts, considerations of procedural fairness, and the unique history of mass incarceration in the United States.</p>
<p>The Council is inviting <a href="https://www.sentencingcouncil.vic.gov.au/projects/consultation">submissions</a> on these and other questions outlined in the discussion paper by Friday, 31 March 2017.</p><img src="https://counter.theconversation.com/content/72570/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Arie Freiberg is the Chair of the Victorian Sentencing Advisory Council, an independent statutory body.</span></em></p><p class="fine-print"><em><span>Paul McGorrery works as a Legal Policy Officer at the Victorian Sentencing Advisory Council, an independent statutory body.</span></em></p>Following Victoria’s Royal Commission into Family Violence, should the state change the way it sentences offenders?Arie Freiberg, Emeritus Professor of Law, Monash UniversityDr Paul McGorrery, PhD Candidate (Criminal Law), Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/701202016-12-09T05:04:06Z2016-12-09T05:04:06ZVictoria’s model for assisted dying laws may be narrow enough to pass<p>After much speculation, the Victorian Government has announced it will put <a href="http://www.theage.com.au/victoria/victorian-parliament-to-vote-on-assisted-dying-laws-next-year-20161208-gt6t0w.html">assisted dying legislation before parliament</a> in the second half of next year. This follows the recent and narrow defeat of a <a href="http://www.abc.net.au/news/2016-11-16/voluntary-euthanasia-debate-in-south-australia-goes-to-committee/8031776">bill in South Australia</a>.</p>
<p>In making the announcement, Premier Daniel Andrews <a href="http://www.theaustralian.com.au/national-affairs/state-politics/daniel-andrews-to-push-ahead-with-euthanasia-laws/news-story/07bef054147f48803c41882d9bb5f7e4">said</a>:</p>
<blockquote>
<p>Each and every member of my team will have a conscience vote and I am confident that each and every member of the parliament more broadly will search their conscience, search their values and search their personal experiences to make a decision that they believe is the right decision for the future.</p>
</blockquote>
<p>What is interesting from a law reform perspective is the decision to include an implementation review step in the process. The premier revealed that an expert Ministerial Advisory Panel of clinical, legal, consumer, health administrator and palliative care experts will help draft the laws. </p>
<p>Media reports suggest the starting point for the review will be the recommendations of a parliamentary committee report “<a href="http://www.parliament.vic.gov.au/lsic/inquiry/402">Inquiry into end of life choices</a>”, released in June 2016. The model proposed by the committee includes a range of safeguards common to assisted dying bills in Australia. </p>
<p>The patient must be an adult and mentally capable of making their own decisions when they make an informed and voluntary request for assistance to die. This request must be repeated (three times in this model), and enduring in that it persists over time. </p>
<p>The patient must have a serious and incurable condition that is causing enduring and unbearable suffering that can’t be relieved. Two doctors must be involved in the process, with a psychiatrist additionally involved in cases where mental capacity is in question.</p>
<p>The model recommended by the parliamentary committee is also narrow in scope. First, it is a physician-assisted dying model. This means the law would focus on permitting the prescription of lethal medication, which is then taken by the patient themselves, rather than being directly administered to the patient by the doctor, as would be the case under a voluntary euthanasia model. </p>
<p>This is different from almost all the other Australian bills, including the recent South Australian one, which would have permitted voluntary euthanasia where death occurs under the direct supervision of the doctor. There is a limited exception where voluntary euthanasia would be allowed under the Victorian model, and that is when a patient is physically unable to take the medication themselves.</p>
<hr>
<p><em><strong>Further reading: <a href="https://theconversation.com/south-australias-reasons-for-voting-down-euthanasia-go-against-the-evidence-69050">South Australia’s reasons for voting down euthanasia go against the evidence</a></strong></em></p>
<hr>
<p>A second way in which the recommended model is narrow is that it is limited to patients “at the end of life”. The parliamentary committee report clarifies this as being in the “final weeks or months of life”. Although the precise meaning of these words can be debated, the intent is that assistance to die is limited to when death is expected in the foreseeable future.</p>
<p>It is narrower than many other Australian bills as it confines the law to a group already close to death. Other bills have, for example, required a patient have a terminal illness but not stipulated a precise period within which death must be predicted to occur.</p>
<p><a href="http://www.heraldsun.com.au/news/victoria/voluntary-euthanasia-laws-placed-under-review-by-andrews-government/news-story/1eeb9800ccf0af39e2d74d32148e08d4">Reports suggest</a> almost half of the members of Victoria’s Legislative Assembly have stated their support for reform. But would a bill pass? </p>
<p>There have been <a href="https://eprints.qut.edu.au/95429/1/Failed%20Voluntary%20Euthanasia%20Law%20Reform%20UNSWLJ.pdf">more than 50 bills</a> dealing with assisted dying in Australian parliaments over the last two decades. Apart from a brief period in the Northern Territory, assisted dying remains unlawful. Legislation was widely tipped to pass in the South Australian parliament last month but fell short by one vote. </p>
<p>Reform in this area is tricky, and apparent consensus can dissolve very quickly. But building and maintaining consensus is more likely for a bill with a narrower focus and with these safeguards. </p>
<p>The inclusion of this further stage of review and deliberation by an expert ministerial advisory panel also makes it more likely reform will occur. One of the barriers to changing the law is parliament debating a bill that fails to consider important issues or turns out to give rise to unintended consequences. </p>
<p>This can be avoided through careful deliberation by experts from a range of disciplines who can iron out the “bugs” that may not be apparent at first glance. </p>
<p>One example of potentially unforeseen problems in the recommended model is the proposal the patient be “at the end of life”. How is this policy position best implemented? Options include specifying a concrete timeframe or taking a more qualitative approach such as that death is “reasonably foreseeable”. </p>
<p>Both can give rise to different problems in principle and in practice as demonstrated by international experience. We have <a href="http://www.cbc.ca/news/canada/montreal/sherbrooke-man-hunger-strike-death-1.3529392">seen this in Canada</a> with reports a small group of people are starving themselves so they can be close to death which is then “reasonably foreseeable”. It is important these and other issues are carefully considered in the drafting of the Victorian bill.</p>
<p>Victoria stands a chance of becoming the first Australian jurisdiction in 20 years, and the first ever Australian state, to have an assisted dying law. But history has shown law reform in this area is especially contentious so we should not expect this bill to be any different.</p><img src="https://counter.theconversation.com/content/70120/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Victoria stands a chance of becoming the first Australian jurisdiction in 20 years, and the first ever Australian state, to have an assisted dying law.Ben White, Professor of Law and Director, Australian Centre for Health Law Research, Queensland University of TechnologyAndrew McGee, Senior Lecturer, Faculty of Law, Queensland University of TechnologyLindy Willmott, Professor of Law, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/519062015-12-08T23:37:05Z2015-12-08T23:37:05ZAs Victoria opens sperm donor records, the key question is: do contact vetoes work?<p>Victoria’s parliament is on Wednesday debating the controversial <a href="http://www.parliament.vic.gov.au/static/www.legislation.vic.gov.au-bills.html">Assisted Reproductive Treatment Amendment Bill</a>. The government <a href="http://hansard.parliament.vic.gov.au/search/?LDMS=Y&IW_FIELD_ADVANCE_PHRASE=be+now+read+a+second+time&IW_FIELD_IN_SpeechTitle=Assisted+Reproductive+Treatment+Amendment+Bill+2015&IW_FIELD_IN_HOUSENAME=ASSEMBLY&IW_FIELD_IN_ACTIVITYTYPE=Second+Reading&IW_FIELD_IN_SittingYear=2015&IW_DATABASE=*">intends</a> that its legislation, if passed, will retrospectively open Victoria’s sperm donor records so all donor-conceived people can obtain the name and date of birth of their donor, regardless of the donor’s consent. Victoria will become the first jurisdiction in the world to take such drastic action on such a large scale.</p>
<p>In recent weeks, donors have <a href="http://www.theage.com.au/victoria/wealthy-sperm-donor-fears-contact-from-more-than-two-dozen-offspring-20150903-gjefke.html">expressed anger</a> about the <a href="http://www.theage.com.au/good-weekend/when-spermdonor-children-come-calling-20150902-gjd76r.html">implications</a> of the legislation, arguing that it is an <a href="http://www.theage.com.au/victoria/andrews-to-overhaul-laws-guaranteeing-sperm-donor-anonymity-20151120-gl4h0l.html">invasion of their privacy</a>. </p>
<p>In response to such concerns, the bill includes the option of lodging a “contact preference”. This will enable a donor or donor-conceived person to veto contact or prescribe the type of contact with which they are comfortable. But do contact vetoes work?</p>
<h2>What will the new law do?</h2>
<p>The proposed law eliminates the existing requirement that someone who donated sperm prior to 1998, when anonymity was still permitted, must give his consent before his identifying information can be released. Any concerns about the privacy rights of donors created by the removal of consent are to be managed through the use of contact preferences.</p>
<p>A donor or donor-conceived person will have four months after an application is made to decide whether or not to lodge a contact preference. If a preference is lodged, the applicant will be required to sign an undertaking that they will comply with its conditions. If an applicant refuses to sign, information will not be provided. </p>
<p>Breaches of a contact preference will be a criminal offence. The penalty will be a a fine of up to 50 penalty units (about A$7583).</p>
<p>If a donor cannot be located within three months of an application being filed, the applicant will be given the donor’s identifying information. However, the applicant must sign an undertaking that if the donor is located, contact will not be made.</p>
<h2>Do contact vetoes work?</h2>
<p>Whether contact vetoes can protect the privacy rights of donors and donor-conceived people can be assessed by looking to the adoption context. Several Australian states and <a href="https://www.ipc.on.ca/images/Resources/adoption.pdf">overseas jurisdictions</a> have introduced laws over the past 20 years retrospectively opening adoption records. Many of those laws include the <a href="https://www.ipc.on.ca/english/Resources/Reports-and-Submissions/Reports-and-Submissions-Summary/?id=214">option of contact vetoes</a>.</p>
<p><a href="http://www.tandfonline.com/doi/full/10.1080/10926750802163188">Research</a> from Australia, the UK and the US on the use of contact vetoes in adoption law indicates that they are rarely breached. For example, a review of the first 12 months of the NSW adoption disclosure system found that compliance with contact vetoes was “remarkably high”, with <a href="http://www.lawreform.justice.nsw.gov.au/Documents/report_69.pdf">only one breach</a> reported. Concerns about parties breaching contact vetoes are thus largely unfounded.</p>
<p>While contact vetoes are typically respected, the NSW review indicated that breaches were not the only criterion by which participants judged the success of the system. The process of lodging the veto was also important.</p>
<p>For example, it was reported that department officials administering the veto system made some adoptees and birth parents feel uncomfortable about lodging a veto. Officials were described as critical of those who sought to put a veto in place. They were also accused of pressuring applicants to attach a message or photo to the veto.</p>
<p>Those who lodged vetoes also objected to having to do so in person. They felt this gave department officials an opportunity to pressure them to not lodge the veto. Others noted that ill-health or lack of mobility made it difficult to lodge a veto in person.</p>
<h2>How should the contact veto system work?</h2>
<p>While concerns that contact vetoes will be breached appear to be largely unfounded, the system must be administered neutrally if the privacy interests of donors and donor-conceived people are to be fully protected. This can be achieved in a number of ways.</p>
<p>First, the counselling that both donors and offspring have to attend if they are the subject of an application must be neutral on the question of contact vetoes. Counselling cannot be used as an opportunity to dissuade participants from lodging vetoes.</p>
<p>Second, those administering the system must refrain from discussing applicants’ decisions with them. Any suggestion that an applicant should change his or her mind or provide photos or other information should be understood as wholly inappropriate.</p>
<p>Finally, it should be possible to lodge a contact veto online or via mail, and the process should be free.</p>
<p>The privacy concerns of donors and donor-conceived people can likely be met by the Assisted Reproduction Treatment Amendment Bill provided the contact veto system is adequately managed. The process must be simple and free of coercion. </p>
<p>A system that lacks these attributes runs the risk of intruding on the privacy of donors and donor-conceived people who do not wish to participate in the new regime.</p><img src="https://counter.theconversation.com/content/51906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a world first, Victoria plans to retrospectively open the records of formerly anonymous sperm donors to all donor-conceived people. A system of contact vetoes aims to manage the privacy concerns.Fiona Kelly, Associate Professor, Law School, La Trobe UniversityDeborah Dempsey, Senior Lecturer in Sociology, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/514072015-11-30T00:04:25Z2015-11-30T00:04:25ZState by state, ‘safe access zones’ around clinics are shielding women from abortion protesters<figure><img src="https://images.theconversation.com/files/103566/original/image-20151129-11614-xnq7n9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Victoria has passed legislation that establishes 'safe access zones' of 150 metres around clinics at which abortions are provided, such as this one.</span> <span class="attribution"><span class="source">AAP/Mal Fairclough</span></span></figcaption></figure><p>It has been a significant few years for the legal promotion and protection of the right of Australian women to access the full range of reproductive health services. Legislation decriminalising abortion was passed in both <a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/BB2C8223617EB6A8CA2574EA001C130A/$FILE/08-58a.pdf">Victoria</a> and <a href="http://www5.austlii.edu.au/au/legis/tas/consol_act/rhtta2013435/">Tasmania</a>. The federal government took a stance in support of the accessibility of RU486, the medical abortion pill. </p>
<p>And now, as of last week, three Australian jurisdictions have introduced “safe access zones” around abortion clinics.</p>
<h2>How we got here</h2>
<p>In 2008, Victoria <a href="http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/BB2C8223617EB6A8CA2574EA001C130A/$FILE/08-58a.pdf">decriminalised abortion</a>. Following the legislation’s passage, abortion became legally available on request at up to 24 weeks gestation. However, practical availability remains a separate and challenging issue.</p>
<p>In 2012, at the federal level, RU486 – the drug required for a medical, as opposed to surgical, abortion – was included on the <a href="https://www.tga.gov.au/search/artg">Australian Register of Therapeutic Goods</a>. This decision meant RU486 could be prescribed in Australia by registered medical practitioners in general, as opposed to only those approved to prescribe the drug through the authorised prescriber process.</p>
<p>It was not until June 2013, though, that RU486 was finally included in the <a href="http://www.pbs.gov.au/pbs/home">Pharmaceutical Benefits Scheme</a>. This made it more affordable.</p>
<p>Drawing on Victoria’s 2008 abortion law reforms, towards the end of 2013 Tasmania <a href="http://www5.austlii.edu.au/au/legis/tas/consol_act/rhtta2013435/">decriminalised abortion</a> and became the first Australian jurisdiction to introduce safe access zones. These are also sometimes referred to as “buffer zones” or “bubble zones”. They create a “bubble” around a clinic that provides abortion services within which no anti-abortion protesting can take place. </p>
<p>The Tasmanian legislation <a href="http://www5.austlii.edu.au/au/legis/tas/consol_act/rhtta2013435/s9.html">prevents protesters</a> from harassing women within 150 metres of a clinic that provides abortion services.</p>
<p>The ACT was the next Australian jurisdiction to take up the mantle. It recently passed a <a href="http://www.legislation.act.gov.au/a/2015-43/current/pdf/2015-43.pdf">law</a> that, according to its <a href="http://www.legislation.act.gov.au/es/db_52770/20150917-61890/pdf/db_52770.pdf">explanatory statement</a>, aims to ensure that:</p>
<blockquote>
<p>… women can access the health facilities in privacy, and free from intimidating conduct.</p>
</blockquote>
<h2>The Victorian law, and what next</h2>
<p>Late last week, Victoria passed <a href="http://www.legislation.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/88C7B9ECB4CE35F0CA257EE500150C59/$FILE/581183bs1.pdf">legislation</a> that establishes safe access zones of 150 metres around clinics at which abortions are provided. This is to “protect the safety and well-being and respect the privacy and dignity of” people accessing those services as well as employees and others who enter the premises.</p>
<p>In her <a href="http://hansard.parliament.vic.gov.au/search/?LDMS=Y&IW_FIELD_ADVANCE_PHRASE=be+now+read+a+second+time&IW_FIELD_IN_SpeechTitle=Public+Health+and+Wellbeing+Amendment+Safe+Access+Zones+Bill+2015&IW_FIELD_IN_HOUSENAME=ASSEMBLY&IW_FIELD_IN_ACTIVITYTYPE=Second+Reading&IW_FIELD_IN_SittingYear=2015&IW_DATABASE=*">second reading speech</a>, Health Minister Jill Hennessy asserted that:</p>
<blockquote>
<p>It is unreasonable for anti-abortion groups to target women at the very time and place when they are seeking to access a health service, or to target health service staff. The impact of such actions on these women must be understood within the context of their personal circumstances. </p>
<p>Many are already feeling distressed, anxious and fearful about an unplanned pregnancy, or a procedure that they are about to undergo. To be confronted by anti-abortion groups at this time is likely to exacerbate these feelings. It is intimidating and demeaning for women to have to run the gauntlet of anti-abortion groups outside health services.</p>
</blockquote>
<p>Those who engage in prohibited conduct in contravention of this legislation may be penalised with up to one year’s imprisonment or 120 penalty units (approximately A$18,200). These are maximum penalties. Judges will have the discretion to order lesser penalties where appropriate.</p>
<p>The major legal objections to safe access zones in Australia have been expressed as constitutional objections. That is, those who have opposed the 150-metre safe access zones have focused on the argument that such legislative provisions infringe the right of protesters to freedom of speech.</p>
<p>It should be noted that Australia, unlike the US, has no constitutionally entrenched right to free speech. However, at the time the Tasmanian law was passed there were murmurings of the possibility of a High Court challenge <a href="https://theconversation.com/tasmanian-ban-on-abortion-clinic-protests-may-not-be-constitutionally-valid-20650">on the basis</a> that the access zones infringe the freedom of political communication that the High Court has <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1997/25.html">held</a> to be an implied right in Australia’s Constitution. </p>
<p>Such a challenge has thus far not come to pass. However, those opposed to these provisions in Victoria dedicated some time during <a href="http://www.parliament.vic.gov.au/images/stories/daily-hansard/Council_2015/Council_Aug-Dec_2015_Daily_26_November_2015.pdf">parliamentary debates</a> to expressing the view that the distance of 150 metres as well as the penalty provisions in the legislation were disproportionate to the stipulated objective of protecting women from intimidation and harassment and therefore were constitutionally invalid. </p>
<p>The problem with proportionality tests is that they are inherently subjective. So, it is difficult to assert with absolute certainty whether the High Court would uphold the Victorian and Tasmanian laws as constitutionally valid, strike them down for invalidity, or read them down as a middle ground.</p>
<p>What is clear is that – for now at least – Victoria has had a huge victory for the rights of women to exercise their choice to access a legal medical service free of intimidation and harassment. </p>
<p>This is not a law about preventing those who oppose abortion from holding such views. People remain free to express anti-abortion sentiments, just not in a place that prevents women from exercising their right to privacy and reproductive health care.</p><img src="https://counter.theconversation.com/content/51407/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ronli Sifris does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Victoria has had a huge victory for the rights of women to exercise their choice to access a legal medical service free of intimidation and harassment.Ronli Sifris, Lecturer in Law, Associate of the Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/403542015-04-29T13:42:22Z2015-04-29T13:42:22ZFar from the Madding Crowd’s Bathsheba was far from unique<figure><img src="https://images.theconversation.com/files/79744/original/image-20150429-23376-dhhuwq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A woman farmer? </span> <span class="attribution"><span class="source">Fox Searchlight</span></span></figcaption></figure><p>The opening scene of <a href="http://www.imdb.com/title/tt2935476/">Far from the Madding Crowd</a>, the new adaptation of Thomas Hardy’s 1874 novel, shows Carey Mulligan’s Bathsheba Everdene stride into a stable, rain pouring outside, to comfort a horse. No skirts rustle or drag in the mud – she’s wearing leather riding trousers and jacket. It’s an image that jolts us out of comfortable period drama expectations, announcing that the film revolves around a woman ahead of her time.</p>
<p>Bathsheba initially lives modestly with her aunt – and there are shots of her working hard on the farm and riding carefree on the hills. But she soon inherits her uncle’s farm, a large agricultural property and old manor house – now financially as well as spiritually independent. </p>
<p>She quickly decides to manage everything herself and makes for a very hands-on estate manager – at least until her marriage to the handsome and reckless Sergeant Troy (Tom Sturridge). She keeps her own accounts, personally negotiates sales of her produce in the corn-market and closely supervises key agricultural tasks such as sheep shearing – even getting involved after being taunted by the hero of the novel, Gabriel Oak (Matthias Schoenaerts).</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/79762/original/image-20150429-23361-18dnwcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Farmer Oak and Bathsheba in riding garb.</span>
<span class="attribution"><span class="source">Fox Searchlight</span></span>
</figcaption>
</figure>
<h2>Proto feminist?</h2>
<p>Quite how far Hardy intended Bathsheba to be a proto-feminist figure is debatable. The novel was in part a response to unease at changes in the law on women’s property rights – specifically, the <a href="http://herstoria.com/?p=473">Married Women’s Property Acts</a> of 1870 and <a href="http://www.legislation.gov.uk/ukpga/Vict/45-46/75/enacted">1882</a>. These modified the common law on <a href="http://www.britannica.com/EBchecked/topic/141184/coverture">coverture</a> (the legal fiction that a married woman’s identity was subsumed within her husband’s), allowing married women to own property in their own right for the first time. </p>
<p>Although Hardy was relatively unique in writing strong female characters and writing so many of them – there are other property-owning women in <a href="http://www.independent.co.uk/arts-entertainment/books/books-the-woodlanders-1887-by-thomas-hardy-1337143.html">The Woodlanders</a> and <a href="http://www.penguinclassics.co.uk/books/a-laodicean/9780140435061/">A Laodicean</a>, for example – an unease with this change in the law sometimes seeps to the surface. In Far from the Madding Crowd, I’ve always found Hardy’s depiction of Bathsheba’s success in the corn-market particularly distasteful. Having braved the all-male space and begun to negotiate sales of her corn, the narrator comments that something in her face when arguing over prices “suggested that there was potentially enough in that lithe slip of humanity for alarming exploits of sex”. This rapid juxtaposition of her achievements and her sexuality seems unlikely to go down well with modern feminists. Needless to say, it’s also not the version of Bathsheba we see in the film.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/CxZs_c9fWxM?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Slightly earlier, Gabriel Oak (a sheep farmer, who lost his flock and is looking for work as a farmhand) expresses considerable surprise at finding his potential employer to be a mistress rather than a master: “A woman farmer?” he remarks aloud. </p>
<p>Yet despite what this implies, as a woman farmer Bathsheba was far from unique in Georgian and Victorian England. New research suggests that, even before the changes to the law in the late 19th century, female landowners were by no means as rare as was once thought by historians. </p>
<h2>The real Bathshebas</h2>
<p>Soon-to-be-published research suggests that around 10% of land in 18th and 19th-century England was owned by women – individual women might own anything from a one-acre smallholding to large estates incorporating several thousands of acres. While not all of these women were actively involved in managing their property, research shows that many of them were energetic and dedicated agriculturalists. </p>
<p>The widowed <a href="https://www.academia.edu/4458759/_All_towards_the_improvements_of_the_estate_Mrs_Elizabeth_Prowse_at_Wicken_1764-1810">Elizabeth Prowse</a> of Wicken, for example, was an enthusiastic estate manager who spent more than 40 years improving her 2,200-acre property in south-west Northamptonshire. She improved both the home farm and tenants’ holdings, installing new drains, experimenting with new crops and introducing new agricultural machinery on her own land as well as subsidising her tenants’ costs in undertaking similar improvements.</p>
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<img alt="" src="https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/79764/original/image-20150429-23391-dswxo6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><span class="source">Fox Searchlight</span></span>
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<p>She also extended Wicken house, rebuilt the local church, renovated her labourers’ cottages and set up a school for the cottagers’ children, all of which she carefully recorded in her meticulously organised estate ledgers. It was perhaps no wonder that her tenants were hailed as “the happiest set of peasants in England”, as they were by one visitor in 1777. </p>
<p>Or there’s Mary Clarke of Chipley (near Taunton). She managed a large farm on behalf of her absent husband, spending her days overseeing the home farm and negotiating with the tenants over things like rents and repairs, all almost two centuries before Thomas Hardy set pen to paper. Like Bathsheba, she dismissed a dishonest bailiff and took on the role herself, noting in October 1696 that she was now “very busie in my new office of head bayliff”. It was a role of which she apparently felt great pride, later noting that “I am not only a perfect farmer’s wife but a farmer too now”.</p>
<h2>Subjects of ridicule</h2>
<p>These are just two examples, but there are many more real Bathshebas to identify in the archives. Looking carefully quickly brings to light dozens of examples of female farmers and landowners from across the length and breadth of early modern England. Amongst them are single women, wives and widows from across the social spectrum. </p>
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<img alt="" src="https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=500&fit=crop&dpr=1 754w, https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=500&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/79765/original/image-20150429-23384-nm6vk7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=500&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Marriage complicates things.</span>
<span class="attribution"><span class="source">Fox Searchlight</span></span>
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<p>Of course, to argue that women played a far greater role in farming and estate management than we once thought is not to say that they didn’t experience difficulties in doing so. As one female landowner put it in the early 19th century: “a woman undertaking to farm is generally a subject of ridicule”. Societal expectations weighed heavily against them, just as they were also profoundly disadvantaged by both coverture and primogeniture (inheritance by the eldest son). </p>
<p>Further research is needed to establish exactly how landowning women were seen by society – not least in novels like Far from the Madding Crowd – as well as how they thought about themselves. But perhaps Hardy was right in having Bathsheba say, as she does in the film while asserting her authority to her farm-hands: </p>
<blockquote>
<p>I shall be up before you are awake; I shall be afield before you are up; and I shall have breakfasted before you are afield. In short, I shall astonish you all.</p>
</blockquote>
<p>As today, it often seems that women had to prove themselves to be doing things better than their male peers, just to be taken seriously.</p><img src="https://counter.theconversation.com/content/40354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Briony McDonagh has received funding from the Leverhulme Trust and the Arts and Humanities Research Board for research connected with this article. </span></em></p>New research suggests that female landowners were by no means as rare as was once thought by historians.Briony McDonagh, Lecturer in Human Geography, University of HullLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/394602015-03-30T03:25:01Z2015-03-30T03:25:01ZVictorian rape law needs reform to protect sex workers<figure><img src="https://images.theconversation.com/files/76364/original/image-20150329-16135-56ulyw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Research has shown that when sex work is illegal, street sex workers who are victims of sexual assault are reluctant to report it to police.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Adrian Bayley, who <a href="http://www.theage.com.au/victoria/bayley-jailed-for-35-years-for-jill-meaghers-rape-murder-20130619-2ohrb.html">raped and murdered</a> Jill Meagher in 2012, was <a href="http://www.theage.com.au/victoria/adrian-bayley-found-guilty-of-raping-three-women-before-he-raped-and-murdered-jill-meagher-20150326-1m3otn.html">convicted</a> late last week by a Victorian court of a further rape charge that took place several months prior to Meagher’s killing. This adds to another two rape convictions after trials that took place under the cloak of a <a href="https://theconversation.com/you-wouldnt-read-about-it-adrian-bayley-rape-trials-expose-flaw-in-suppression-orders-39375">suppression order</a>. Bayley will be sentenced on the three rape convictions later this year. He is already serving a minimum of 35 years for Meagher’s rape and murder.</p>
<p>Given two of these three convictions were for raping street sex workers, there should now be increased attention on the comparatively low sentences given to sex offenders when the victim is a sex worker. </p>
<p>Bayley had a <a href="http://www.theage.com.au/victoria/timeline-the-dark-past-of-adrian-bayley-20150326-1m3sda.html">long history</a> of serious sexual offending, including multiple convictions for a series of sexual assaults against street sex workers in 2000 and 2001. The sentence given for these assaults – 11 years’ imprisonment, with a non-parole period of eight years, for sexual assaults against five women – seems to be surprisingly low. This is especially so, considering that <a href="https://www.sentencingcouncil.vic.gov.au/publications/sentencing-snapshots/sentencing-snapshots-complete-series/snapshot-145-rape">recent statistics</a> indicate that a sentence of five to six years (per offence) is the median sentence given in Victorian higher courts for rape.</p>
<p>Media commentators and experts have noted the barriers to reporting these sexual assaults, including the continued criminalisation of street sex work in Victoria. <a href="http://www.aifs.gov.au/acssa/pubs/issue/i8.html">Research</a> has shown that despite the prevalence of offending, when sex work is <a href="http://search.informit.com.au/documentSummary;dn=971597060035085;res=IELBUS">illegal</a>, victims are reluctant to report assaults to the police, often for fear of prosecution. </p>
<p>But what remains unacknowledged in this debate is the position of Victorian law in regards to sex worker sexual assault victims. Two controversial cases provide a non-binding precedent that allow judges to consider the victim’s sexual experience when passing sentence on an offender – but only in circumstances when the “victim is a prostitute”. The current <a href="http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#13888.htm">Victorian Sentencing Manual</a> highlights that these cases have not been overruled.</p>
<p>In 1991, Heros Hakopian was convicted for the kidnap, aggravated indecent assault and aggravated rape of a St Kilda-based street sex worker. During sentencing, Justice Crockett <a href="http://www.aic.gov.au/media_library/publications/proceedings/20/scutt.pdf">declared</a> that due to her sex work:</p>
<blockquote>
<p>… the likely psychological effect on the victim of a forced oral intercourse and indecent assault is much less a factor in this case and lessens the gravity of the offences.</p>
</blockquote>
<p>This determination followed an earlier precedent set in Harris in 1981, a case involving the rape of two women, a former and current sex worker. Justice Starke similarly remarked that the act of rape would not cause the:</p>
<blockquote>
<p>… reaction of revulsion which it might cause in a chaste woman.</p>
</blockquote>
<p>Both the Harris and Hakopian cases reinforced what is known as the <a href="http://dare.uva.nl/aup/en/record/172520">“whore stigma”</a>, where female sexuality is divided into a good girl/bad girl binary. “Good girls” are worthy of the protection of the law; bad girls are not.</p>
<p>Immediately following the Hakopian controversy, Victoria’s then-attorney-general Andrew McCutcheon made a verbal reference to the state’s Law Reform Commission to inquire into issues arising out of the case, to be rolled into an existing inquiry by the commission into rape law. In 1992, the commission recommended that the principle underlying Hakopian be overturned. It <a href="http://anj.sagepub.com/content/40/2/127.abstract">argued</a> that:</p>
<blockquote>
<p>If sentences are to be differentiated on the basis of the psychological effect of the crime on the victim, these assessments must be based on information about the actual impact of the offence on that particular victim, not simply on the fact that the victim comes from a particular social or occupational group.</p>
</blockquote>
<p>This recommendation was never acted upon.</p>
<p>The current sentencing guidelines for Victorian judges note that the guidance offered by Hakopian and Harris is “non-binding” as it was of a factual nature, that it is contentious, and that the ubiquity of victim impact statements in modern times is likely to render these cases irrelevant. However, the principles of Harris and Hakopian remain available to judges.</p>
<p>This sentencing advice is troubling on three fronts. First, it allows judges to interpret that sex workers experience trauma and victimisation differently to “chaste” women, and reinforces the whore stigma. Second, it can be interpreted as placing an onus on sex worker victims to prove their trauma. Third, it shifts focus away from the offender and their actions and towards the victim.</p>
<p>We cannot be surprised when offenders like Bayley receive lenient sentences for a series of rapes of sex workers when the advice we <a href="http://www.aifs.gov.au/acssa/pubs/issue/i8.html">give to judges</a> is that:</p>
<blockquote>
<p>… where the victim of a rape is a prostitute, the victim’s sexual experience may be relevant to sentence.</p>
</blockquote>
<p>We cannot know exactly how much influence this advice has had on judicial decision-making for offenders like Bayley. But we cannot discount it either. We also cannot rely on the hope that the judiciary will eventually catch up to community expectations. </p>
<p>It’s time that Victorian law takes the victimisation of sex workers seriously. The first step must be overturning the principles of Harris and Hakopian through legislation.</p><img src="https://counter.theconversation.com/content/39460/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Hiscock was previously employed at the Department of Justice, and was the Policy Officer for the Attorney-General's Street Prostitution Advisory Group.</span></em></p>There is a non-binding precedent in Victoria that allows judges to consider the victim’s sexual experience when passing sentence on a sex offender – but only when the “victim is a prostitute”.Rebecca Hiscock, PhD Candidate, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.