Some Laws that Need to be Changed (Or: The Spirit is Willing but the Law is Weak)

Bit of a diatribe today about the need for several changes to existing laws. This is a real-time account. Since some people will not read this entry until the royal commission is concluded, they will have the benefit of reading it in hindsight. Hopefully, the issues raised here will have been expressed in the final recommendations, especially if people lobby their politicians accordingly.

An earlier entry concerned the “Ellis Defence” used by the Catholic Church to protect its assets from compensation claims. There has been movement recently in this area with a National ABC Lateline piece from Judy Courtin and David Shoebridge who are strong advocates of removing the “Ellis Defence”. (http://www.abc.net.au/lateline/content/2013/s3698168.htm)

The rules governing the Statute of Limitations need to be revisited from the perspective that it normally takes a long time for people to be able to cope enough to take their complaints to the appropriate authorities. The standard three years is farcical.

The so-called inviolability of the confessional, for situations where a crime is revealed, should also be abolished as a medieval throwback. The courts can indefinitely imprison a journalist who refuses to disclose a source, so why should the priest have a greater level of protection for a “source”?

Covering up for paedophiles by officials of an organisation should be more clearly a crime, with stiffer penalties and a strong message from the courts that such behaviour is not acceptable in a civilised society. Mitigating circumstances arguments and spurious “willing participant” defences need to be minimalised if not eradicated. Indeed, though some would say it is going too far, it may be necessary in some situations to place the onus of proof on the official to demonstrate that appropriate action was taken when a paedophile came to notice.

Some form of legal aid needs to be provided to victims suing an abusive organisation in the civil courts. Too often, these contests are a very one-sided affair benefiting the organisation which typically has greater financial resources than its victims have. While many lawyers do the right thing by having pro bono and “no win – no fee” arrangements, it is unfair to them and the responsibility for risk lies firmly with the government. Government could also recoup the costs from the organisation if the complaint is upheld.

An Ombudsman’s office needs to be established with powers agreed to by all interested parties.

When a functionary of an organisation is convicted of child abuse (of any kind) the organisation should be compelled to advertise the fact in a manner which would reasonably be expected to inform potential clients or affected persons of the organisation of the essentials of the event.

Government needs to negotiate an extradition treaty with the Vatican State. (Indeed it would be a good thing if the United Nations required all states to agree on extradition conventions concerning the crime of child abuse). Too many people have been able to abscond to the Vatican or elsewhere overseas.

Provision should be made for the potential to fine an organisation when a court considers it did not do enough to avoid a paedophile’s actions. This would be very broad and require close attention by the courts to circumstances on a case-by-case basis. Fines could be placed in a fund to finance the legal aid alluded to above. Government already has similar powers with regard to companies that cause a public injury of various kinds, for example, the James Hardie asbestos case.

All State and Federal Ministers having responsibility for child protection should be required to present an annual report to the Parliament and Senate on progress in dealing with child abuse in their particular area.

Provision should be made for the possibility of an organisation being declared a “rogue” organisation if it consistently fails to reach community standards for child protection. (This would be analogous to a declared “terrorist” organisation, in spirit if not in fact). Procedures would, of course, have to be reasonable and penalties ranging on a scale from a “black mark” through to banning the organisation or expelling its officials from the country. Penalties could also include reconsideration of government funding to “rogue” organisations. Judicial wisdom would play a very significant role here so that actions are appropriate to circumstances.

Training institutions offering formal qualifications to people wishing to work with children must have, as a requirement for any government funding, included in the course, a module on the identification, prevention and reporting of child abuse. Some already do this, but it must become a formalised requirement.

There are undoubtedly many more issues than those raised in this posting and suggestions would be welcomed in this regard.

The larger area pertaining to matters of compensation funding will be addressed in a later article when there has been more input from concerned people both in Australia and elsewhere.

TOMORROW: Who opposed the royal commission and why

That’s all I can say

Lewis Blayse (né Lewin Blazevich)

 

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