Redress Scheme

Changing the tax and charities regime to foster engagement by nongovernment institutions with remedies for harms?

The Australian Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse report Getting the National Redress Scheme right: An overdue step towards justice comments

The National Redress Scheme was a primary outcome of the comprehensive, five-year-long Royal Commission into Institutional Responses to Child Sexual Abuse. The establishment of the scheme tells survivors of institutional child sexual abuse that, as a nation, we believe their stories of abuse, that we failed to protect them, and that we will now do everything in our power to try to provide some degree of justice to survivors. The Prime Minister, the Hon Scott Morrison MP, has delivered a National Apology to survivors, but the redress scheme is our opportunity for our words to be translated into measurable outcomes. The National Redress Scheme is too important to not get right. 

The report has found that, as it currently operates, the redress scheme is at serious risk of not delivering on its objective of providing justice to survivors. The National Redress Scheme commenced on 1 July 2018 and therefore has been operating for nine months. During this period it has received more than 3000 applications, a mere five per cent of the estimated 60 000 likely eligible participants. As at 28 February 2019, 88 redress payments had been made with a further 22 offers made that were being considered by the applicant.

There is still much about the practical application of certain provisions of the redress scheme that is unclear. This is due, at least in part, to the short period in which the scheme has been operating, combined with the small number of redress payments made. As the scheme matures, and as more survivors seek to access the three redress components, it is likely that some issues only briefly flagged in this report will emerge into sharp focus, while other issues not even considered here will come to light. As these new problems emerge, it is critical that there is ongoing oversight of the redress scheme to allow problems to be properly considered and appropriately addressed. The committee has found that the statutory reviews will not provide adequate oversight and that a committee, similar to this committee, should be established throughout the life of the redress scheme.

However, the committee's oversight of the scheme during its early stages of operation provides an opportunity to make changes to key legislative and policy concerns. The committee is conscious of the significant barriers to implementing any substantive legislative and policy amendments. In addition, the committee is mindful of the need for the scheme to provide certainty for survivors. These barriers and concerns have been balanced with the need to get the scheme right. Significant changes to the scheme cannot wait—they must be made now.

The report makes 29 wide-ranging recommendations. In implementing these recommendations it is essential that the following core principles are adhered to:

• The redress scheme and any amendments to the scheme must continue to be survivor-focused and trauma-informed. 

• Amendments to the scheme must proceed on the principle of 'do no further harm' to the survivor. 

• Amendments must be subject to proper consultation with key survivor groups and feedback from consultations should be appropriately incorporated.

Intrinsic to a survivor's access to redress are the institutions responsible for the sexual abuse and their decision to join the scheme. While all states and territories are now participating in the scheme, there are no mechanisms to force private institutions to join the scheme. Yet survivors will not be able to obtain redress if the institution responsible for their abuse refuses to join the scheme. This is both unfair and unacceptable. Plainly, more needs to be done to pressure non-participating institutions to join the scheme, and provide survivors with access to redress.

From 27 February 2019, the redress website published the names of institutions that were named in the Royal Commission but have not joined the scheme. Publicly naming these institutions is a start. But it is not, by itself, sufficient. Institutions that refuse to recognise their role in the abuses that occurred and to accept responsibility for their actions should be subject to clear penalties, which could include the suspension of tax concessions and the withdrawal of their charitable status.

While the participation of relevant institutions is crucial, in cases where the institution no longer exists, access to the scheme, and ultimately a step towards justice, can only be achieved if all jurisdictions fill this gap. The committee has found that the funder of last resort provisions are too narrow and that Commonwealth, state and territory governments need to fill the gap where the institution responsible for the abuse is a defunct institution and the defunct institution would not have fallen under the operation of another existing institution.

Central to the redress scheme are the survivors. Wherever possible, the scheme should be an inclusive scheme that does not exclude groups of survivors. Currently, certain groups of survivors are either not eligible for redress or are subject to potentially arbitrary decisions when seeking permission to apply for redress. The government has suggested that some of these exclusions are necessary to protect the scheme from particular risks, such as fraud, while others are necessary to ensure the efficient administration of the scheme. These are not sufficient justifications to unilaterally exclude large groups of survivors, who would otherwise have a legitimate claim, from accessing redress.

Instead, it is up to the redress scheme to find a mechanism, whether through the development of clear guidelines, practices or strategies, to mitigate these risks and overcome any administrative challenges. The committee makes recommendations in relation to the following groups of survivors to allow them to fairly access the scheme:

• Survivors who are not Australian citizens or permanent residents. 

• Survivors who are currently in gaol. 

• Survivors with serious criminal convictions.

Fundamental to the success of the redress scheme and the assessment as to whether the objects of the scheme are being achieved is whether the key components of redress align with the recommendations of the Royal Commission. The report has found that the redress scheme falls short of many of the key recommendations of the Royal Commission, including in the following areas:

• In relation to the monetary component: 

• an assessment framework that does not reasonably recognise the impact of abuse for each individual; • a maximum redress payment of $150 000—which is $50 000 short of the maximum payment recommended by the Royal Commission; and 

• a failure to set a minimum payment of $10 000. 

• In relation to the counselling and psychological care component: 

• an assessment framework that unreasonably provides that institutions pay an insufficient amount for the counselling and psychological care of survivors, and which inappropriately places a monetary amount on the care provided based on the kind of abuse suffered rather than the survivor's need for counselling and psychological care; 

• concerns relating to the counselling and psychological care not being available for the life of the survivor, nor on an episodic basis; and 

• concerns relating to the quality and flexibility of care. 

• In relation to the direct personal response component: 

• concerns that the responsible institution will be leading the process for the provision of a direct personal response; and 

• concerns relating to the lack of oversight.

Remedying the disparities between the redress scheme and the recommendations of the Royal Commission will require substantive legislative change or changes to key policy. All amendments will require agreement from state and territory governments. These are significant barriers, but they should not be considered insurmountable, nor should they be the reason to not push for legislative amendments when required. The committee has concluded that without legislative change the scheme may never be properly accepted by survivors as a fair scheme and a real alternative to litigation. The report has also found that redress services—community-based support, financial support services and legal support services—must be adequately funded to ensure that they meet the needs of survivors when required, and regardless of the survivors' location or other barriers that might exist.

Survivors will have difficult decisions to make about the viability of applying for redress. The process of applying for redress will, for many, be a traumatic experience. It will require survivors to recount stories of the abuse they experienced and detail the impact of that abuse on their life. Equally, those who decide to receive a direct personal response from the responsible institution will also need adequate support. It is essential that survivors are supported throughout the entire process. This report highlights the need for the redress scheme to be transparent and accountable. More information needs to be made publicly available. Governments and departments have a responsibility to ensure that processes are visible and understood by survivors. The committee makes recommendations aimed at ensuring a more transparent scheme. 

Additionally, it appears that unnecessary restrictions have been placed on the review of determinations made about an application. When these restrictions are considered in combination, they result in unreasonable outcomes for survivors in what should be a beneficial scheme. The committee makes recommendations to address these unfair outcomes. 

The committee recognises that no scheme can remove the trauma felt by victims or adequately acknowledge or correct the wrongs inflicted on survivors. The committee's recommendations are aimed at ensuring that, as far as it is able to, the National Redress Scheme delivers on its objective of recognising and alleviating the impact of past institutional child sexual abuse, and providing justice for survivors. The committee looks forward to Commonwealth, state and territory governments meeting this call.

 The Committee makes the following recommendations

Recommendation 1  The committee recommends that any amendment to the scheme proceed on the principle of 'do no further harm' to the survivor, be subject to proper consultation with key survivor groups, and appropriately incorporate feedback from those consultations. 

Recommendation 2  The committee recommends that Commonwealth, state, and territory governments place and maintain pressure on all relevant institutions to join the redress scheme as soon as practicable. 

Recommendation 3   Noting that such a mechanism should only be applied in the context of the National Redress Scheme, the committee recommends that the government consider mechanisms and their efficacy, including those available under the Charities Act 2013, to penalise all relevant institutions that fail to join the scheme, including the suspension of all tax concessions for, and for the suspension of charitable status of, any institution that:

• could reasonably be expected to participate in the scheme, including because the institution was named in the Royal Commission into Institutional Responses to Child Sexual Abuse, or an application for redress names the institution; 

• has had reasonable opportunity to join the redress scheme; and 

• has not been declared as a participating institution in the National Redress Scheme for Institutional Child Sexual Abuse Declaration 2018. 

Recommendation 4  The committee recommends that Commonwealth, state and territory governments expand the circumstances in which the funder of last resort provision applies so that the relevant participating jurisdiction acts as the funder of last resort where:

• the institution responsible for the abuse is now a defunct institution; and 

• the defunct institution would not have fallen under the operations of an existing institution. 

Recommendation 5  The committee recommends that, in regards to the National Redress Scheme, that Commonwealth, state and territory governments revisit the practice of indexing prior payments.  

Recommendation 6  The committee recommends that the Parliament consider referring an inquiry to a parliamentary committee into the adequacy of state and territory responses for survivors of institutional child non-sexual abuse, including consideration of the redress models that could be available to these survivors. 

Recommendation 7  The committee recommends that Commonwealth, state and territory governments give consideration to allowing all non-citizens and non-permanent residents access to redress provided that they meet all other eligibility criteria. Particular regard should be given to allowing the following groups to be eligible for redress:

• former child migrants who are non-citizens and non-permanent residents; 

• non-citizens and non-permanent residents currently living in Australia; and 

• former Australian citizens and permanent residents. 

Recommendation 8  The committee recommends that Commonwealth, state and territory governments agree to and implement amendments that would allow all survivors who are currently in gaol or who have been sentenced to imprisonment for five years or longer to apply for and receive redress, unless:

• the Operator decides in relation to a particular survivor that providing redress to the survivor would bring the National Redress Scheme into disrepute or adversely affect public confidence in the scheme; and 

• the decision of the Operator is based on publicly available guidelines that set a high threshold for bringing the scheme into disrepute or adversely affecting public confidence in the scheme. 

Recommendation 9  The committee recommends that Commonwealth, state and territory governments work together to develop and implement a new Assessment Framework which more closely reflects the assessment matrix recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse and which acknowledges that the type or severity of abuse does not determine the impact of sexual abuse for the individual. 

Recommendation 10  If a new Assessment Framework is implemented to replace the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, the committee makes the following recommendations: 

• That applicants who were assessed using the current framework are re-assessed using the new framework. 

• When re-determining the redress payment under the new framework, offers of redress must not be lower than the original offer. 

Recommendation 11  The committee recommends that the government clearly communicates to the public, to the maximum extent allowed under current provisions, how applications for redress are considered and the grounds on which determinations are made. 

Recommendation 12  If the current National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 is maintained, then the committee recommends that any acknowledgment of 'extreme circumstances' in the Assessment Framework be applicable to all applicants, not only those who experienced penetrative abuse. 

Recommendation 13  If the current National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018 is maintained, then the committee recommends that the government publicly clarify key terms in the Assessment Framework. 

Recommendation 14  The committee recommends that the government clearly and openly explain how the maximum payments came to be set at $150 000 rather than $200 000, and the rationale for this decision. 

Recommendation 15  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments agree to increase the maximum redress payment from $150 000 to $200 000. 

Recommendation 16  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments implement a minimum payment of $10 000 for the monetary component of redress, noting that in practice some offers may be lower than $10 000 after relevant prior payments to the survivor by the responsible institution are considered, or after calculating a non-participating institution's share of the costs.  

Recommendation 17  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments agree to and implement amendments that would ensure that each survivor receives an adequate amount of counselling and psychological services over the course of their life, noting that the amounts currently provided for, pursuant to section 6 of the National Redress Scheme for Institutional Child Sexual Abuse Assessment Framework 2018, are wholly inadequate. 

Recommendation 18  The committee recommends that the Commonwealth government clarify, in the case of declared providers of counselling and psychological care, what services are provided to eligible survivors of the redress scheme that are distinct from or in addition to services already available to Australian citizens. 

Recommendation 19  In line with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the committee recommends that Commonwealth, state and territory governments consider mechanisms to ensure that survivors have life-long access to counselling and psychological care that is available on an episodic basis, is flexible and is trauma-informed. 

Recommendation 20 The committee recommends that Commonwealth, state and territory governments agree to amend an institution's reporting obligations under section 17 of the National Redress Scheme for Institutional Child Sexual Abuse Direct Personal Response Framework 2018 to require institutions to provide to the Operator the following information:

• the number of complaints made to the institution in relation to direct personal responses; 

• the nature of these complaints; and 

• how these complaints were resolved. 

Recommendation 21 The committee recommends that the government ensure that redress support services are appropriately funded so that they are available to all survivors, regardless of the survivor's location, cultural or other barriers. 

Recommendation 22  Noting that the Intergovernmental Agreement on the National Redress Scheme for Institutional Child Sexual Abuse committed to providing survivors with access to financial support services, the committee recommends that Commonwealth, state and territory governments explore mechanisms to ensure that survivors have access to free and appropriate financial counselling services, when required.

Recommendation 23  The committee recommends that the government ensures a clear process to allow survivors to indicate on the redress application form whether their application should be considered a priority. 

Recommendation 24   The committee recommends that the government ensures that people are regularly informed of the progress of their application. 

Recommendation 25  The committee recommends that the government publish, on the National Redress Scheme website, the average processing time for applications and other key data concerning the redress scheme, and that this data be regularly updated to ensure they are reasonably current. The average processing time should be from either:  the date the application was lodged to the date an offer was made; or  the date all relevant information was received for an application to the date an offer was made. 

Recommendation 26  The committee recommends that Commonwealth, state and territory governments agree to and implement amendments necessary to allow applicants to provide additional information in support of their review application, up to the point of the redress payment being made.  

Recommendation 27  The committee recommends that Commonwealth, state and territory governments agree to and implement amendments necessary to ensure that a review does not result in an applicant receiving a lower redress amount than their original offer. 

Recommendation 28  The committee recommends that the government closely monitor the timeliness of internal review determinations. 

Recommendation 29 The committee recommends that the new Parliament consider the establishment of a parliamentary committee, similar to this committee, to oversee the National Redress Scheme throughout the life of the scheme.

Restitution

The Victorian Sentencing Advisory Council report Restitution and Compensation Orders addresses Terms of reference that required the Council to "examine whether restitution and compensation orders made under the Sentencing Act 1991 (Vic) should become sentencing orders, rather than remain as orders in addition to sentence (often called ancillary orders)".

That examination involved advising on whether:

• the purposes of sentencing should include the financial reparation of victims;

• there should be a presumption in favour of courts making such orders; and 

• such orders should be enforced by the court in the manner of a fine. If it concluded that restitution and compensation orders should become sentencing orders, the Council was asked to consider: 

• the most appropriate processes and procedures for restitution and compensation orders in all courts; 

• whether victims should have a right of appeal against the amount of an order awarded or the court’s failure to make an order; and 

• whether an offender’s financial circumstances should be taken into account when making an order. 

The Council comments that

A substantial number of recent reviews and proposed reforms, both in Victoria and nationally, are likely to address some of the issues encountered by victims seeking compensation, as well as improve victims’ experiences with the criminal justice system more broadly. Recent reviews and reforms include:

• the Victorian Royal Commission into Family Violence and consequential improvements to the treatment of victim survivors of family violence; 

• the VLRC’s The Role of Victims of Crime in the Criminal Trial Process: Report, which made a number of recommendations aimed at improving the treatment of victims in the criminal justice system; 

• the VLRC’s review of the Victims of Crime Assistance Act 1996 (Vic); 

• the Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse; 

• the establishment of the National Redress Scheme for victims of institutional child sexual abuse; and 

• the Commonwealth Government’s review of the rules governing the early release of superannuation, and whether an offender’s superannuation should be available to pay restitution or compensation to victims of crime. 

Its Guiding principles were

1. ensuring that proposed reforms accord with the rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Victims’ Charter Act 2006 (Vic); 

2. ensuring that proposed reforms will not place a victim in a situation of increased risk, in the context of both family violence offending and other kinds of interpersonal offending; and 

3. managing victims’ expectations, in particular avoiding the creation of false expectations for victims as to what the reforms to restitution and compensation orders can realistically achieve. 

The Report states

In preparing its advice, the Council has been conscious of the fact that most offenders have very limited financial resources. The Council does not, however, have data on the financial resources of offenders. Reforms that are intended to improve the enforcement of restitution and compensation orders rely on the assumption that the current system does not recover (or does not efficiently recover) payment of such orders from all offenders who have the capacity to pay. 

Due to data limitations, however, it is difficult to test that assumption, and determine whether the current low level of payment of restitution and compensation orders reflects offenders’ lack of means or failures or inefficiencies in enforcement. Due to data limitations, it is not possible to determine whether the current system is achieving efficient recovery of money from the small proportion of offenders who actually have the capacity to pay. 

The Council’s recommendations aim to increase payment and enforcement rates from those offenders who have some capacity to pay. The Council has also stressed the need for a coherent approach to victims’ compensation in Victoria, and the importance for the government to consider the interaction between the different options for compensation open to a victim. The Council considers that the proper compensation of victims requires a coherent approach to both state and offender-paid compensation.

It goes on to state

Should restitution and compensation orders become sentencing orders? 

The current hybrid system of restitution and compensation orders, that is, a system that incorporates elements of both criminal and civil law, provides a number of practical benefits for victims that cannot be achieved in either a strictly criminal or a strictly civil proceeding. For example:

• victims do not need to establish their loss before a separate judicial officer;   

• victims do not need to establish their loss to the criminal standard of proof (‘beyond reasonable doubt’), but rather can satisfy the civil standard (‘on the balance of probabilities’); 

• victims do not need to pay the costs associated with bringing a claim in a civil court; and 

• the process is faster and more streamlined than bringing a separate claim for civil damages.

The Council has been cautious to preserve these benefits of the current system. The Council’s intent is to improve the practical outcomes for victims, without removing the significant benefits of the current hybrid approach to restitution and compensation orders.

In light of the guiding principles, the Council considers that making restitution and compensation orders sentencing orders would raise several insurmountable problems, including eroding the fundamental principle of equality before the law, and potentially exposing victims to retraumatisation in the process of establishing their losses. The Council’s consultation has established that the overwhelming majority of stakeholders do not consider that such a change would be desirable, and consider that it would be unlikely to improve practical outcomes for victims.

Similarly, in relation to the secondary question of whether the purposes of sentencing should be expanded to include victims’ financial reparation, the Council has concluded that to do so could fundamentally undermine the sentencing process by leading to differential sentencing outcomes depending on the financial circumstances of an offender or the individual circumstances of a victim.

In light of its research and consultation, the Council recommends that restitution and compensation orders should not become sentencing orders. 

Recommendation 1: Restitution and compensation orders to remain ancillary orders 

Restitution and compensation orders should remain ancillary orders that are made in addition to a sentence under the Sentencing Act 1991 (Vic), and should not become sentencing orders. 

While affirming the status of the orders as ancillary, the Council considers that the current system for making and enforcing restitution and compensation orders could be improved by:

• increasing the availability and consistency of information and legal advice to victims about restitution and compensation orders; 

• increasing the use, in appropriate cases, of the current power to restrain assets for the purpose of meeting an order for restitution or compensation under the Confiscation Act 1997 (Vic); 

• retaining the ability of a court to take into account the financial circumstances of the offender in making a compensation order (sections 85H and 86(2) of the Sentencing Act 1991 (Vic)); 

• increasing a victim’s ability to enforce restitution and compensation orders on their own behalf; and 

• considering the introduction of a hybrid model for enforcement of restitution and compensation orders, involving state enforcement of the orders through civil mechanisms, where a victim (who is a natural person) elects to assign their right of enforcement to the state. 

Provision of information to victims 

A number of stakeholders, including victims of crime, noted during consultation that there is a need to improve the consistency and timeliness of the provision of information to victims of crime concerning their right to restitution or compensation. The Council recommends the establishment of a working group, coordinated by the Victims of Crime Commissioner, to review and consolidate information provided to victims of crime concerning their options for compensation, in order to ensure the consistency and accuracy of information provided to victims in relation to orders for restitution or compensation and the enforcement of these orders. As the Victims of Crime Commissioner’s role is to advocate, investigate, report and advise in relation to systemic issues for victims of crime, the Council believes the Commissioner would be best placed to coordinate this reform. 

Recommendation 2: Victims of Crime Commissioner to establish a working group to consider provision of information to victims 

The Victims of Crime Commissioner should establish a working group that includes representation from: the Department of Justice and Regulation; the Office of Public Prosecutions; and Victoria Police. 

The working group should review and consolidate information and resources provided to victims of crime concerning avenues for compensation to ensure that all resources contain consistent and accurate information on:  making an application for a restitution and/or compensation order under the Sentencing Act 1991 (Vic); and how such an order is enforced. 

Agencies to review policies and training 

The Council notes that the timely investigation and restraint of offenders’ assets can increase the possibility of successful enforcement of an order for restitution or compensation. The Council heard from a number of stakeholders that the use of these powers could be improved.

Accordingly, the Council recommends strengthening coordination between Victoria Police and the Office of Public Prosecutions regarding the investigation of offenders’ assets and applications for restraining orders for the purposes of meeting an order for restitution or compensation.

Based on stakeholder feedback, the Council does not consider increased powers of forfeiture of an offender’s assets to be appropriate or necessary.

Recommendation 3: Agencies to review policies and training

Victoria Police and the Office of Public Prosecutions should review policies and training to ensure that consistent internal and inter-agency approaches are taken to:

• investigating offenders’ assets; 

• applying for restraining orders under the Confiscation Act 1997 (Vic); and 

• applying for orders for restitution and/or compensation under the Sentencing Act 1991 (Vic).

Retention of discretion to consider offenders’ financial circumstances

The VLRC previously recommended that the County and Supreme Courts, in making a compensation order in favour of an individual under the Sentencing Act 1991 (Vic), should not have regard to an offender’s financial circumstances. The VLRC considered that an approach consistent with a civil court, which generally has no regard to a defendant’s capacity to pay when determining an award of damages, should instead be adopted.

As it recommends strengthening the enforcement of restitution and compensation orders (through consideration of state enforcement of these orders using civil mechanisms), the Council recommends the retention of a court’s discretion to consider an offender’s financial circumstances when making such an order. The Council prefers an overall approach to restitution and compensation orders under the Sentencing Act 1991 (Vic) that maintains the hybrid status of these orders.

Retention of the discretion to consider an offender’s financial circumstances is also consistent with one of the Council’s guiding principles: to avoid creating false expectations for victims of crime as to what amount of compensation they are likely to receive from an offender. 

Recommendation 4: Retention of discretion to consider offenders’ financial circumstances 

Sections 85H and 86(2) of the Sentencing Act 1991 (Vic) should be retained, allowing a court in making a compensation order for injury or property loss to take into account, at the court’s discretion and as far as practicable, the financial circumstances of the offender and the nature of the burden that payment of the order will impose. 

A Council Director expressed a minority view that section 86(2) of the Sentencing Act 1991 (Vic) should be repealed, so that when a court considers making a compensation order for property loss, an offender’s financial circumstances cannot be taken into account. 

Instalment orders 

The Council considers that the power of a court to make an instalment order at the time it makes a compensation order is underutilised. The Council therefore recommends that judicial officers should give particular consideration to whether it may be appropriate to make an instalment order at the time of making a compensation order. This recommendation aims to encourage payment of orders from offenders who are in a position to commence payment at the time the order is imposed. 

Recommendation 5: Court to consider making instalment order following compensation order 

When making a compensation order, a judicial officer should give particular consideration to whether it may also be appropriate to make an instalment order, having regard to the victim’s wishes.

Waiver of fees associated with civil enforcement mechanisms for certain victims

The Council heard from a broad range of stakeholders that the removal of fees for victims who are natural persons, as well as not-for-profit and charitable organisations, could eliminate a financial barrier for victims seeking to enforce orders for restitution or compensation, and may encourage victims to enforce orders independently. Consequently, the Council recommends that the Victorian Government should consider waiving enforcement fees for victims of crime who are natural persons or charitable organisations. 

Recommendation 6: Waiver of Department of Justice and Regulation and court fees for victims 

The Victorian Government should consider amending all necessary legislation to enable the Department of Justice and Regulation (including the Sheriff’s Office), and all relevant courts, to waive appropriate fees for victims of crime seeking to enforce orders for restitution or compensation where the victim is a:

• natural person; 

• public benevolent institution; 

• charitable, religious or educational organisation; or 

• other not-for-profit entity. 

Consideration of state enforcement of restitution and compensation orders through civil mechanisms 

The Council heard from stakeholders that the process of enforcing an order for restitution or compensation through the civil system can be expensive, complex and traumatic for victims. In order to overcome such barriers to enforcement, and consistent with maintaining the hybrid approach to restitution and compensation orders, the Council recommends consideration of a hybrid approach to enforcement of those orders, through state enforcement using civil mechanisms.

If state enforcement is introduced, the Council recommends that there be certain limits placed on the state’s use of civil enforcement mechanisms. This acknowledges that vigorous state enforcement against offenders who have no capacity to pay could result in further punishment that is not taken into account in the sentencing process. Placing reasonable limits on civil enforcement by the state also seeks to avoid an approach that could lead to the imprisonment of persons for failure to pay civil orders.

Many stakeholders noted the potential risk to victims of family violence if state enforcement were to occur automatically. In accordance with this feedback, the Council recommends that the enforcement agency should only enforce orders at the election of the victim. 

Recommendation 7: Consideration of state enforcement of restitution and compensation orders through civil mechanisms 

The Victorian Government should consider whether the Department of Justice and Regulation’s Infringement Management and Enforcement Services, or another specialist enforcement agency, should be empowered to enforce restitution and compensation orders on behalf of victims of crime who are natural persons.

If such state enforcement of restitution and compensation orders is introduced, the enforcement agency should:

• only enforce an order at the election of the victim, and the victim should have the ability to direct that the enforcement agency cease civil enforcement action; 

• only be empowered to use civil mechanisms of enforcement, consistent with the current powers for a judgment creditor to enforce a judgment debt under the Judgment Debt Recovery Act 1984 (Vic) and other relevant legislation; 

• be bound by the protections for civil judgment debtors in Victoria, including:  limitations on the seizure and sale of goods or property that are protected under section 42 of the Supreme Court Act 1986 (Vic); and  the prohibition under section 12 of the Judgment Debt Recovery Act 1984 (Vic) on instalment orders against offenders whose income is solely derived from government benefits; 

• only pursue enforcement of an order where, in the opinion of the enforcement agency, there is a reasonable prospect of substantially satisfying the order within a reasonable time; and 

• receive all necessary additional resources, including:  sufficient staff, including legally qualified staff with expertise in judgment debt recovery and victims’ compensation, and knowledge of the nature and dynamics of family violence; and  IT systems that allow for agency staff to ascertain whether an offender has fine debt and/or infringement debt, as well as any relevant civil debts for which enforcement action has been taken. 

Consideration of a specialist victims’ legal service 

The Council heard from several stakeholders about the difficulties for victims in obtaining legal advice on their compensation options. Stakeholders considered that the current system for making and enforcing restitution and compensation orders could be improved through the provision of timely and comprehensive legal advice to victims on their compensation options. A number of stakeholders emphasised the need for specialist advice in what is a complex area of law, including advice on all the potential avenues for compensation that may be open to victims, both against offenders and against third parties. 

The Council considers the provision of comprehensive legal advice, although beyond the terms of reference, to be of particular importance in managing victims’ expectations as to whether they are likely to receive compensation. It may also ensure that the most appropriate avenue for compensation is pursued depending on the circumstances of a particular case. The availability of such a legal service could complement a state enforcement agency, as victims could be directed to more suitable compensation options in circumstances in which an offender may not have any capacity to pay an order for restitution or compensation.

The Council also stresses the need for those providing legal advice to victims of crime to have an understanding of a broad range of compensation options for victims, including civil compensation. Those providing legal advice to victims of crime should also have an understanding of the potential dynamics between victims and offenders, particularly in the family violence context. 

Recommendation 8: Consideration of a specialist legal service to assist victims of crime with compensation matters 

The Victorian Government should consider establishing a specialist victims’ legal service that would provide:

• comprehensive free legal advice to victims of crime on their options for compensation, including orders for restitution or compensation under the Sentencing Act 1991 (Vic), the Victims of Crime Assistance Tribunal, civil compensation and/or any applicable compensation schemes; and 

• legal information or advice throughout the criminal trial process where this is not provided by other agencies.

The victims’ legal service should be supported by all necessary resourcing, including staff with expertise in victims’ compensation (including civil compensation), and knowledge of the nature and dynamics of family violence.

Marbles

'The Parthenon Marbles in the British Museum' by James Leitzel comments

In the early part of the 19th century sculptures from the Parthenon in Athens were removed from the Acropolis under the direction of the Earl of Elgin, then the British ambassador to the Ottoman Empire, which at the time included Greece. The sculptures were brought to Britain, finding their way to the British Museum in London in 1816, where they are viewed by millions of museum visitors annually. A debate long has simmered as to whether these Parthenon Marbles, which date from the 5th century BCE, should be returned to Athens or remain in the United Kingdom. Elements of the debate include questions about: the legitimacy of the initial relocation of the statuary; the quasi-legal impact of more than 200 years of British stewardship; the risk-mitigating role for dispersal of art; and, the influence on other art and museums of any precedent that might be established by return of the Parthenon Marbles. 

This paper surveys the arguments on both sides of the debate. A Law-and-Economics lens is employed to examine the ‘property dispute’ surrounding the Marbles. Coase-like reasoning is applied to the question of the ‘highest-valued’ location of the Marbles, supplemented with behavioral economics concepts involving cultural identity and endowment effects. The paper concludes by offering some contours for a potentially Pareto-improving agreement that would result in the reunification of the Parthenon Marbles in Greece.

Leitzel concludes

The Law and Economics approach to property disputes such as that concerning the Parthenon Marbles in the British Museum involves seeking an outcome that comports with the maximization of efficiency. This approach ignores – except to the extent that efficiency is implicated – issues such as legality, justice, and ethics: issues that often are highlighted in other approaches to the Marbles dispute. What efficiency does take into account are the preferences of all interested individuals, current and future, while reflecting the intensity of those preferences, generally expressed in terms of the willingness-to-pay for various alternatives. The fact that efficiency concerns the preferences of all interested parties indicates that it has no direct interest in national boundaries or national cultural heritage: in the “two ways of thinking about cultural property” identified in Merryman (1986), efficiency falls on the cosmopolitan, one-common-culture side of the divide (as opposed to taking a nationalistic approach). In terms of precedent, an efficiency rationale for return of the Parthenon Marbles does not support a general rule that people today who happen to inhabit a region of the earth where great art was produced or resided in the past have any stronger claim than do the rest of us to possession or ownership of the art. 

The major elements of the efficiency-centered view are the number of people who can see the Marbles in the two competing locations (or other locations, for that matter); the value of the aesthetic experience that viewing the Marbles would hold in the alternative locations (or rather, the incremental value relative to the experience without the Elgin Marbles); and the intensity of the desire for possession unrelated to viewing, perhaps deriving from an understanding that the Marbles form a key part of one’s cultural heritage. In my estimation, the aesthetic and the “cultural heritage” elements greatly favor the Athens claim, whereas in terms of number of visitors, London currently is superior. Assuming that the efficiency calculus does favor Athens, what sort of a deal can be struck that will result in the reunification of the Parthenon Marbles at the Acropolis Museum? Such a mutually beneficial bargain will be possible, by the usual economics reasoning, if indeed Athens remains the more efficient location, even when transaction and relocation costs are accounted for. The rudiments of a potential agreement are suggested by resolutions to other recent cultural property disputes.  The idea is to fashion the return of the Elgin collection into a celebration of the art and the initiation of a new phase of Greek-British cooperation in matters cultural. Loans of other Greek antiquities to Britain, exhibits in Athens and London devoted to the British Museum’s stewardship over the Marbles, scholarly conferences (perhaps in many fields, including, for instance, literature, history, and economics), and commitments to continued educational exchanges (such as internships for British students at the Acropolis Museum or other Greek cultural institutions, with reciprocity in Britain for Greek students): these are the types of elements that can transform an ongoing irritant in Greek-British relations into a celebration and enhancement of the Parthenon and its place in world culture.

Reparation and citizenship

The New York Times features an item on proposals in Spain to offer dual citizenship to any person — self-identifying as Jewish or otherwise — whose Sephardic origins can be certified.

The proposal, not yet approved by Spain's legislature, is a reparation for the 1492 expulsion of Spain's Jews, removes some onerous existing requirements that include the need for applicants to renounce their current citizenship.

The NYT reports that

Leon Amiras, chairman of an association for immigrants to Israel from Latin America, Spain and Portugal, said this week that he planned to apply for Spanish citizenship and that many families had books or documents allowing them to trace and prove their ancestry. When his own grandmother and great-grandmother left Izmir, in Turkey, for Argentina, they were issued an identity document that was certified by the Spanish consul there at the time. … 

The Justice Ministry of Spain said this week that it had no estimate of how many Sephardic Jews might be eligible for Spanish citizenship. So far, the ministry has registered 3,000 applications, but a spokeswoman said that number should now increase. … 

In what appeared to be a reciprocal gesture, Natan Sharansky, chairman of the quasi-governmental Jewish Agency for Israel, estimated this week that there were millions of descendants worldwide of conversos, Jews who converted to Catholicism under duress in medieval Spain, including hundreds of thousands who are exploring ways of returning to their Jewish roots. “The state of Israel must ease the way for their return,” said Mr. Sharansky, who spent years in Soviet prisons for his human rights activities before arriving in Israel.

Grant of Spanish nationality will give the new citizens the right to move freely and work in any other country of the European Union.

Detail of course matters. A statement on the website of Spain's embassy in Canberra states -

The Spanish Council of Ministers approved a Draft Bill that simplifies considerably the administrative procedure of concession of the Spanish nationality to Sephardic Jews, whose ancestors were expelled from the Iberian Peninsula more than five centuries ago.

The Draft Bill must still follow the appropriate parliamentary procedure. 

The Draft Bill modifies the Civil Code, and will simplify the matter of proof of the condition of Sephardic Jew but furthermore, will not require that applicants give up their current citizenship. 

Those who wish to apply will have two years to do so after parliamentary approval. The Council of Ministers will be able to extend this period for another year. 

The alternative requirements established by the Draft Bill as sufficient proof for Sephardic Jews are: 

• A certificate from the competent rabbinic authorities legally recognised in their place of residence 

• Family surnames or family language (Ladino) 

• A certificate from the Spanish Federation of Jewish Communities confirming that the applicant is a Sephardic Jew 

• The inclusion of the name of the applicant or his/her direct descendants in the lists of Jewish families protected by Spain 

• Link or relationship of the applicant to a person or family as mentioned above

Although there are Sephardic communities in the five continents, and some of them keep alive the usage of the Spanish language spoken in the XV century, Ladino, it is expected that the proposed legal reform may have greater impact in Israel, given that it is estimated than more than 3.5 million, half of their population, is of Sephardic ancestry. 

As pointed out by Alberto Ruiz-Gallardón, Spanish Minister of Justice and driving force behind this initiative “after their forced expulsion, many Sephardic Jews kept and passed on from generation to generation the keys of their houses left behind in Spain. .… five centuries later, the door is reopened.”

The Spanish proposal is more generous that 'investor citizenship' (ius pecuniae) regimes elsewhere in Europe, Australia and other jurisdictions.

Malta is meanwhile attracting criticism within the EU over its move to a privately-managed fast-tracked, no-strings-attached Maltese citizenship offer. Pay 650,000 euros and you are in, with very few questions asked in a 'drive-by' citizenship program that will presumably be emulated in other parts of the world. New citizenship plus a couple of shelf companies in Tuvalu, Kiribati or the Caymans while you wait?

Scams

My chapter on financial criminals features the much hyped Jordan Belfort, operator of the Stratton Oakmont  boiler-room 'pump & dump' scam currently being celebrated in Martin Scorsese's film The Wolf Of Wall Street.

One of the fascinations of people such as Alan Bond, Allen Stratton, Jabez Balfour, Whittaker Wright, Jordan Belfort and Peter Foster is their ability to picture themselves as victims. Some of them are apparently lie with a straight face before, during and after conviction … enough so to convince themselves, their victims and bystanders.

The Wall Street Journal claims - accurately or otherwise - that Belfort "has been shirking court-ordered restitution to his victims".

Mr. Belfort is allegedly living off book proceeds, movie royalties and motivational-speaker fees in Australia, where his assets are out of reach of U.S. authorities. ...

A lawyer for Mr. Belfort, Nicholas De Feis, said his client had made every restitution payment required of him and said Mr. Belfort has pledged to turn over 100% of book and movie royalties to victims of his fraud scheme. He denied prosecutors' claims that Mr. Belfort had relocated to Australia. Mr. Belfort lives in Manhattan Beach, Calif., his lawyer said, and had traveled to Australia for work reasons.

"He's made payments as he was required to make payments and as he earned income," said Mr. De Feis. "He has never run from his obligations."

The WSJ states that

Prosecutors went public with their frustrations this week after Mr. Belfort made what they claimed were false statements touting his generosity toward his victims. In a Dec. 29 post on Mr. Belfort's Facebook page, the convicted fraudster and former head of the Stratton Oakmont brokerage firm said he was going above and beyond the court order to turn over 50% of his gross income and would instead give 100% of his book and movie proceeds to victims.

"For the record: I am not making any royalties off the film or the books, and I am totally content with that," Mr. Belfort said in that post.

That didn't sit well back in Brooklyn, where prosecutors had filed a motion placing Mr. Belfort in default two months earlier. "We want to set the record straight," said Mr. Nardoza. "Belfort's making these claims, and they're not factual. He's in Australia and using that loophole to avoid paying."

For example, Mr. Belfort received $940,000 in 2011 selling movie rights to his story, according to court documents, but that year paid just $21,000 in restitution and claimed a $24,000 deduction on his income tax for the payment. ...

Federal prosecutors indicted Mr. Belfort in 1998 for securities fraud and money laundering. He pleaded guilty and was ordered to pay $110.4 million in restitution to his victims. The court ordered him to pay 50% of gross income to victims until the full amount had been repaid. In exchange for cooperating with investigators, Mr. Belfort received a reduced sentence of three years in prison.

Mr. Belfort has paid $11.6 million in restitution so far, but the vast majority of that came in the form of properties forfeited as part of his plea agreement, according to prosecutors. While serving a three-year period under court supervision after his April 2006 release from prison, Mr. Belfort paid the required 50% of his income, though he made little money in that period, according to prosecutors.

Once that probationary period ended in 2009, however, prosecutors said Mr. Belfort stopped paying. He moved to Australia, complicating the government's efforts to track and seize his assets, they said. Prosecutors believe Mr. Belfort's income began to grow as his motivational-speaking business took off, royalties from two books picked up, and a lucrative movie deal was signed, according to Mr. Nardoza.

In October 2013, prosecutors filed a motion placing Mr. Belfort in default on his restitution payments, but they subsequently withdrew it to pursue a negotiated settlement. They declined to comment on the progress of those talks, which are continuing. Mr. Belfort's lawyer also declined to comment on the talks.

Expunged

The Age reports that the Victorian Government "will become the first state to erase the criminal records of men who were previously convicted for having gay sex", presumably on the model of the opt-in expungement provisions of the UK Protection of Freedoms Act 2012 noted here.

The move will end decades of anxiety for countless men who were prosecuted before homosexuality was decriminalised in Victoria in 1981. Before decriminalisation, men who had consensual sex with other men were convicted of crimes such as ''buggery'' and ''gross indecency with a male person'', restricting them from travelling, volunteering or applying for jobs such as teaching. …

Premier Denis Napthine will reportedly state that

"these convictions have been allowed to stand for far too long'' and had stigmatised many people who had been forced to live with the burden of a criminal record. 

''It is now accepted that consensual acts between two adult men should have never been a crime,'' Dr Napthine said. ''The Liberal government, led by Sir Rupert Hamer, recognised this and decriminalised homosexual sex in the 1980s. We also recognise the social and psychological impacts that have been experienced by those who have historical convictions for acts which would no longer be a crime under today's law.'' 

The changes follow similar laws recently introduced in Britain by David Cameron's Conservative government, which allow an estimated 16,000 convictions to be wiped from police records. In Victoria, legislation will be introduced this year, paving the way for a showdown between the state Coalition and Labor over the so-called ''pink vote'', particularly in electorates such as Prahran and Albert Park. 

Under the policy, anyone with a historical conviction for an offence relating to homosexual acts would be able to apply to have their conviction expunged, provided the offence is not a crime under current legislation. 

The application would then be reviewed to ensure the offence related to consensual sex with a person of legal age. If determined the offence was no longer a crime under existing law, the record would be wiped clean. Convictions for non-consensual sex or sex with a minor will remain.

We will now wait, presumably for quite some time, for the other jurisdictions to follow suit. No chance, alas, of a general apology from the ADF for dishonourable discharge of men with a same sex affinity.

The Victorian development appears to reflect the Human Rights Law Centre paper [PDF]. Its recommendations are applicable to the other jurisdictions -

Recommendation 1: (primary offences) 

Any future scheme to expunge gay sex offences should include the following historical offences:

• consensual ‘buggery’ or attempted ‘buggery’; 

• consensual acts of gross indecency between male persons; 

• indecent assault of a person who is a consenting party; 

• loitering or soliciting for homosexual purposes; 

• ‘offensive behaviour’ charges under current and repealed legislation, for acts committed in public which would not be considered offensive by today’s standards; and 

• ‘offensive behaviour’ charges for acts committed in public spaces that could not reasonably be observed by a member of the public. 

Recommendation 2: (other LGBTI people) 

The scheme should accommodate the expungement of offences used against:

• people who did not conform with gender stereotypes, including in dress, mannerisms or appearance, including female impersonators/ drag queens, transvestites and transgender people (including transsexuals, gender queer and/or cross-dressers) where such conduct would be found to be lawful today; and 

• lesbians and other same-sex attracted women, where the criminal conduct would have been found to be lawful had it been engaged in by persons of the opposite sex and therefore lawful today. Further research should be undertaken to identify the offences used against these individuals 

Recommendation 3: (associated and inchoate offences) 

The scheme should accommodate the expungement of:

• convictions for offences that would not have taken place had it not been for a primary offence referred to in Recommendation 1 above eg. resisting arrest; and 

• convictions for inchoate offences relating to a primary offence including, for example, ‘attempts’. 

Recommendation 4: (cautions, warnings, fines)

• A proposed scheme in Victoria should, as is the case in the UK, allow for expungement of cautions, warnings, fines and other reprimands in relation to the specified offences. 

• A review of police and other records should be undertaken to gather further information about how cautions, warnings, fines and other reprimands may be disclosed to the public and removed from a person’s record.   

Recommendation 5: (age of consent)

• A person convicted of an offence for consensual sexual activity with another person, which would not currently be an offence under age of consent laws, should be entitled to have their conviction and any associated records expunged. 

Recommendation 6: (effect of expungement) 

In summary the scheme should:

• remove the conviction from a person’s criminal record; 

• remove any possibility that a person may be treated adversely in law for the former conviction; 

• ensure there is no capacity for the conviction to be made public and protect the privacy of affected individuals; 

• authorise a person not to disclose the fact of their past gay sex conviction (remove the risk of perjury or contract breach); 

• prohibit disclosure of the fact of the conviction by other relevant persons; and 

• repair damage caused by the conviction. 

Recommendation 7: (electronic records) 

The proposed scheme in Victoria must provide that all electronic records of expunged offences must be permanently deleted. This includes records held by:

• Victoria Police; 

• Victorian Courts; 

• Office of Public Prosecutions; and 

• Department of Justice and other Government departments including documents relating to:  working with children checks; and the registration of sex offenders. 

Recommendation 8: (paper-based records)

• Consideration should be given to whether deletion of paper-based records is appropriate and/or practical and, in the alternative, such paper-based records should be redacted or, if redaction is not appropriate, annotated to make it clear that the conviction and the circumstances leading to conviction have been ‘disregarded’ or ‘expunged’. 

Recommendation 9: (perjury and contractual terms)

• Once expunged, a proposed scheme in Victoria should expressly provide that the person is not required by law to disclose the former conviction while under oath. The proposed scheme should follow the UK and Australian federal model under section s85Z of the Criminal Records Act 1914 (Cth). 

• The proposed scheme should also provide that a person may deny an expunged conviction in contract terms and make a contract term requiring such information unlawful. 

Recommendation 10: (explicit prohibition on discrimination)

• A proposed scheme in Victoria should expressly provide that discrimination on the basis of a former gay sex conviction is unlawful. 

• A contract term must not require a person to disclose an expunged conviction and is unlawful to the extent that it does so. 

Recommendation 11: (consequential amendments to other statutes) 

• Care should be taken when drafting proposed legislation to ensure that in addition to removal from criminal history checks, expunged convictions are not considered ‘relevant’ offences for the purpose of Working With Children Checks and other administrative decisions. 

• The Victorian Government should conduct an audit to identify any necessary consequential amendments to other legislation to remove possible discrimination against people with expunged convictions. 

Recommendation 12: (expungement upon application)

• The expungement process should be as simple and easy for affected men as possible and where possible avoid the need for men to apply to have a conviction expunged. 

• The Victorian Government should review access to and content of police records for the purpose of devising a scheme that minimises the impact on individuals. 

• Based on how records are stored and what information is recorded, consideration should be given to whether some or all of the relevant offences can be automatically expunged. 

Recommendation 13: (application process) 

• The application process should be simple and straightforward 

• If an application is refused, the applicant should be provided with reasons and relevant records forming the basis of the refusal. 

• Internal and external review processes should be established. 

• Judicial review of an administrative decision under the scheme should be expressly preserved in the legislation. 

• The scheme should ensure the privacy of all persons applying for expungement or applying to an internal or external review body. 

Recommendation 14: (representation for applicants)

• Applicants should be given an opportunity in the application form or application process to appoint a representative to act on their behalf and receive correspondence relevant to the application. 

Recommendation 15: (posthumous expungement)

• The estate or next of kin of a person who lived with a conviction for a gay sex offence should be permitted to apply for expungement posthumously. 

Recommendation 16: (location of relevant records)

• A review of all possible sources and locations for records be undertaken to determine which agencies should be requested to provide records to assist the decision-making process.   

Recommendation 17: (publicise the scheme) 

The following steps should be taken to publicise the scheme:

• develop a community education campaign and communication strategy in partnership with the LGBTI community, aged care providers, volunteer, employer and employee associations and unions and Victoria Police (who administer criminal record checks); 

• include a notice on criminal record check and Working With Children Check forms and relevant websites about the scheme and how to apply for expungement if a person thinks they may be eligible; and 

• ensure that where a person’s criminal record check or working with children check discloses a conviction listed in the scheme from the relevant period, Victoria Police should provide information about the scheme to that person with the results. 

Recommendation 18: (formal repudiation)

• The Victorian Government should formally acknowledge that the criminalization of homosexuality was wrong and repudiate the laws in question. 

Recommendation 19: (apology)

• The Victorian Government and Victorian Police should also issue a formal apology for past discriminatory laws and practices targeting same sex attracted men in Victoria, taking into account established principles for formal apologies articulated in the 2012 Senate Committee report on forced adoption. 

Recommendation 20: (support and assistance for applicants)

The Victorian Government should fund:

• independent professional support and counselling services for LGBTI people following the introduction of an expungement scheme; 

• an independent LGBTI organisation to provide guidance and advice to affected individuals and assist them through the application process.

The Victorian Premier's media release is here.

Pardons and posterity

Auden astutely commented that

History to the defeated, May say Alas but cannot help nor pardon

On reading the news that Alan Turing has at last been posthumously pardoned - effective today - for gross indecency (Section 11 of the Criminal Law Amendment Act 1885) I endorse Andrew Hodges' comment that

Turing suffered appalling treatment 60 years ago and there has been a very well intended and deeply felt campaign to remedy it in some way. Unfortunately, I cannot feel that such a 'pardon' embodies any good legal principle. If anything, it suggests that a sufficiently valuable individual should be above the law which applies to everyone else.

It's far more important that in the 30 years since I brought the story to public attention, LGBT rights movements have succeeded with a complete change in the law – for all. So, for me, this symbolic action adds nothing.

Section 11 of the 1885 Act provided that

Any male person who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.

Gross indecency was not statutorily defined. The section was applicable irrespective of the ages of the male persons and irrespective of whether the act was committed in public or private, with or without consent.

The section was replaced by section 13 of the Sexual Offences Act 1956, which referred to

an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man.

The offences under s 11/13 were formally abolished altogether by the Sexual Offences Act 2003, with the Sexual Offences Act 1967 having decriminalised homosexual behaviour in private between men over 21.

The British Government has not apologised to or pardoned consenting adults who are still alive and were prosecuted under s 11/13, albeit under the Protection of Freedoms Act 2012 people convicted under ss 12 (buggery) and 13 (gross indecency) of the Sexual Offences Act 1956, s 61 of the Offences against the Person Act 1861 and s 11 of the Criminal Law Amendment Act 1885 can apply to the Home Office to have those convictions formally disregarded. That Act was noted here.

Turing, being dead, couldn't avail himself of that option and neither could other people - such as the late playwright and provocateur Oscar Wilde - who are deceased.  If we're engaging in selective pardons for celebrities we might move on to Mr Wilde … and there are a substantial number of non-celebrities (duly convicted under the law of their time for consensual same sex activity, witchcraft, heresy and so forth) who lack advocates.

The Turing pardon, by royal prerogative, removes from the subject of the pardon, "all pains, penalties and punishments whatsoever that from the same conviction may ensue, but not to eliminate the conviction itself". Turing thus remains convicted under the law that was in effect in 1952 but - nearly 60 years after absconding from the Darwin Hotel - is no longer contained by lawful "pains, penalties and punishments" associated with the conviction.

There's been no concerted move to pardon Australian men who were fined, imprisoned and stigmatised for consensual same-sex activity under the local counterparts of the UK statute.

DOD

The Australian Government has released redacted extracts from the Executive Summary and Key Findings [PDF] from the first volume of the Report of the review of allegations of sexual and other abuse in Defence: Facing the problems of the past.

The review was triggered by the 'ADFA Skype incident' last year and was conducted by Dennis Pearce, Melanie McKean & Gary Rumble.

The redacted report indicates that -

On 11 April 2011, the Minister for Defence Stephen Smith announced that an external law firm would be engaged by the Secretary of Defence to review allegations of sexual or other forms of abuse that have been drawn to the attention of the Minister’s office, as well as to the Department of Defence and the media.

The allegations followed an incident at the Australian Defence Force Academy. In response to these allegations, the law firm DLA Piper was engaged by the then Secretary of the Department of Defence to review each allegation methodically and at arm’s length from Defence to determine the most appropriate way for these complaints to be addressed.

The Review has had before it specific allegations within scope from 847 different people (sources). Many of these sources have more than one allegation within scope.

We have allegations across every decade from the 1950s to date. The earliest date of alleged abuse is 1951 (on a 13 year old boy, now a man in his 70s). We have allegations of events during 2011.

The allegations which have been raised with the Review are incredibly diverse. They are made by men and women in respect of conduct by men, women and groups. They involve minors and adults. They span 60 years. They come from diverse geographical locations. They come from different parts of the Defence organisation. They relate to the full range of possible involvement in the ADF—training, normal duties, deployment, hospitalisation and so on. The incidents range from extremely serious to (relatively) minor. The behaviour complained of ranges from that which has never been acceptable nor tolerated, to that which, whilst not acceptable, has in the past been tacitly tolerated.

It is not possible to summarise the nature of the allegations as a group. Each allegation has been considered in accordance with its circumstances.

The volume features several recommendations, some of which have been released -

Recommendation 3

If a new complaint resolution scheme is established, it should not be limited to people who have come to this Review but should be open to people who have not raised matters with this Review.

Recommendation 4

If a new complaint resolution scheme is established, each allegation reported on within Volume 2 should be reviewed to see if the allegation is suitable for the new scheme.

This is particularly important to allegations identified in Volume 2 for 'no further action‘. That recommendation is based on the remedies currently available for the members concerned. If new remedies are put in place, some of the 'no further action‘ matters may be suitable for reparations under the new system.

Recommendation 5

There should be further investigation of matters identified during Phase 1 as raising real concerns as to the occurrence of abuse and/or mismanagement by Defence of reports of abuse.

Issue 20

The Review considers that Phase 2 should consult with the Defence Force Ombudsman to determine a role for the Defence Force Ombudsman in overseeing whatever processes for investigation and reparation are adopted following this Report.

Recommendation 6

Further investigations to be made during Phase 2 should be conducted by an external review body. A body similar to that which has conducted Phase 1 of the Review should be established for this purpose.


Recommendation 7

Consideration should be given to establishing a capped compensation scheme for the victims of abuse within Defence. During Phase 2 a detailed proposal for a capped compensation scheme could be developed for the Government‘s consideration at the end of Phase 2.

Recommendation 8

Consideration should be given to establishing a framework for private facilitated meetings between victims, perpetrators and witnesses of abuse within Defence. During Phase 2 a detailed proposal for such a framework could be developed for the Government‘s consideration at the end of Phase 2.

Issue 21

Consideration should be given in Phase 2 to the appointment of an office or body external to Defence to oversight implementation of the recommendations made by this Review (including in relation to systemic issues) and thereafter to oversee the operation of the complaints system in practice, including, in particular, the treatment of victims.

Recommendation 9

Special counselling and health services in place for the duration of this Review should be extended into Phase 2 of the Review whilst a plan for providing health services to victims of abuse is prepared. Thereafter, the plan should be implemented such that victims of abuse within Defence have access to counselling and health services.

Recommendation 10

A suite of options should be adopted to provide means for affording reparation to persons affected by abuse in Defence comprising:

 public apology/acknowledgements;
 personal apology;
 capped compensation scheme;
 facilitated meeting between victim and perpetrator;
 health services and counselling.

A body or team should be tasked to develop detailed proposals for the suite of options, so that they may be presented for a decision on implementation.

While the suite of options are being developed, there should be further external investigation of matters recommended in Volume 2 for further external investigation. There could be referral of matters recommended for internal/external referral.

Volume 2 recommendations are limited to existing options. Accordingly, matters recommended for ̳no further action‘ in Volume 2 should be 'held', pending the development of the proposals and then - where appropriate - considered for possible action under any new processes adopted. There should be appropriate communication to complainants as to what will happen
during the transition stage and into Phase 2.

Sadly unimaginative

Leon Trotsky, patron saint of socialist romantics, condemned Tsar Nicholas II as profoundly unimaginative rather than evil. In considering the latest brouhaha over claims of systemic cover-ups or indifference among senior Roman Catholic clergy in relation to proven abuse of minors it is tempting to conclude that the institutions have been unimaginative, unable to think outside traditional responses - particularly shuffling miscreants from parish to parish - in responding to problems that involved real human suffering.

A news item from the ABC indicates that some senior personnel in the Church have missed the point. The item states that -

The child sex abuse crimes of individual priests are not the fault of the Roman Catholic Church as a whole, a top Vatican cardinal said overnight, lamenting what he called "unfair attacks".

"Christians feel rightly hurt when there is an attempt to embroil them in the serious and painful matters of some priests, transforming individual faults and responsibilities into collective ones", said Angelo Sodano, the dean of the Vatican's College of Cardinals.

"Now the accusation of paedophilia is being brandished against the Church", Cardinal Sodano said in an interview with Vatican newspaper L'Osservatore Romano.

He added: "In the face of these unfair attacks we are being told that our strategy is wrong, that we should react differently. The Church has its own style... the only strategy that we have comes from the Gospel".

Also Tuesday, Vatican Radio warned of what it called an "anti-Catholic media campaign of hatred".

The paedophilia of some clergy is arguably not the fault of the Church or of all Roman Catholics. (Not all Christians, with apologies to Cardinal Sodano, are members of that belief system and thus not all will necessarily share his deep sorrow at "an attempt to embroil them in the serious and painful matters of some priests".)

However, it is clear from both internal and external studies, such as those concerning abuses in Ireland, that senior personnel have on occasion failed to deal effectively with serial predators. The apparent inability to acknowledge that failure is at best unseemly, an unseemliness exacerbated by claims of persecution and recourse to comparisons with anti-semitic persecution.

The latter is particularly egregious considering the Vatican's failure - again, arguably a failure of imagination or the inhumanity consequential on thinking sub specie aeternitatis - to vigorously (or merely explicitly and recurrently) condemn both the Holocaust and the active involvement of individual Roman Catholics (including clergy in Southern Europe) in the racially-based industrial slaughter of millions of people.

The same lack of imagination is apparent in Easter rhetoric by Anthony Fisher OP, DD, BA (Hons), LLB, BTheol (Hons), DPhil, Bishop of Parramatta, who - presumably informed by possession of an exclusive truth unavailable to the godless - informed the faithful that the effects of atheism are devastating and that people falsely believe they can build a better life without believing in God. The evidence for that claim?

Last century we tried godlessness on a grand scale and the effects were devastating: Nazism, Stalinism, mass murder, abortion and broken relationships - all promoted by state-imposed atheism.

Let us not, of course, mention a millennium or two of nastiness imposed by believers on other believers and pass over the fast-tracking of canonisation of Pius XII.

Vatican-bashing is indeed unfair but unsurprising in the face of resolute denial and claims of victimisation. Bishop Fisher and Cardinal Sodano would do well to recall the comment in the Eire report -

The Dublin Archdiocese's pre-occupations in dealing with cases of child sexual abuse, at least until the mid 1990s, were the maintenance of secrecy, the avoidance of scandal, the protection of the reputation of the Church, and the preservation of its assets. All other considerations, including the welfare of children and justice for victims, were subordinated to these priorities. The Archdiocese did not implement its own canon law rules and did its best to avoid any application of the law of the State. ...

The authorities in the Archdiocese of Dublin and the religious orders who were dealing with complaints of child sexual abuse were all very well educated people. Many had qualifications in canon law and quite a few also had qualifications in civil law. This makes their claims of ignorance very difficult to accept. Child sexual abuse did not start in the 20th century. Since time immemorial it has been a "delict" under canon law, a sin in ordinary religious terms and a crime in the law of the State. Ignorance of the law is not a defence under the law of the State. It is difficult for the Commission to accept that ignorance of either the canon law or the civil law can be a defence for officials of the Church. ...

In addition to their clerical education, many of those in authority in the Archdiocese had civil law degrees or occupied prestigious appointments in third level education. Monsignor Sheehy, Bishop O'Mahony and Bishop Raymond Field were qualified barristers. Bishop Kavanagh was Professor of Social Science in University College Dublin where both Archbishop Ryan and Archbishop Connell held high ranking academic posts. Despite their participation in civil society, it was not until late 1995 that officials of the Archdiocese first began to notify the civil authorities of complaints of clerical child sexual abuse.

All very sad. Time to say sorry in a meaningful way or not complain while critics score a few direct hits.

Repatriation

The International Repatriation Advisory Committee of the national Department of Families, Housing, Community Services & Indigenous Affairs (FaHCSIA) is seeking comment on the Department's review of its International Repatriation Program.

That Program reflects the Australian support for the Declaration on the Rights of Indigenous Peoples. It aims to return the human remains of Australia's Indigenous peoples held in other countries, primarily in anthropological or archaeological museums and medical collections. The remains were collected under official and private auspices from first European contact. They include skulls and other skeletal material, including items that have been fashioned as vessels or otherwise processed.

The Committee indicates that -

these are often referred to as ancestral human remains because they are the ancestors of Aboriginal and Torres Strait Islander peoples. In this paper the Committee refers to ancestral remains as Old People, in part as a mark of respect and in part to raise awareness that the remains are first and foremost real people, they are family.

The Program coexists with a broader cultural repatriation program - Return of Indigenous Cultural Property - administered by the national Department of Environment, Water, Heritage and the Arts (DEWHA).

The Committee indicates that a key aim of its Program is to "Promote healing and reconciliation through the return of Indigenous ancestors to their traditional lands or communities of origin" -

For Aboriginal and Torres Strait Islander peoples the return of Old People back to country is the first step towards restoring their dignity. It restores their rightful place as Elders, mothers, fathers, grandmothers, grandfathers, uncles, aunties, brothers and sisters. It acknowledges the wrong done to them and allows them to finally rest in peace in their homelands. It recognises the unbreakable bond, customary obligations and traditional practices between the living, the land and the dead.

. Fashions in curatorial practice mean that some overseas institutions have expressed a willingness to deaccession some or all 'Old People' from their collections. Others have argued that the remoteness of the relationship between contemporary communities and some archaeological material precludes repatriation, argued that there are scientific rationales for retention or suggested that cultural property from Australia and Africa is no different to that from Italy, Greece or Germany (ie Indigenous people do not have a privileged status in receiving and reburying items that have entered museum collections over the past three hundred years).

The Committee notes that -

The return of cultural property is a contentious issue for collecting institutions around the world, including Australia, and this may adversely impact on an institution's willingness to return Old People. As a result, a negotiation about cultural property in addition to Old People may prevent a successful repatriation outcome. Many overseas institutions have national or state legislation or policies that prevent the return of any cultural property. For this reason, institutions that have returned Old People have done so by amending legislation to return 'human remains' which are seen as separate from other cultural property.

It goes on to comment that -

in earlier times some Indigenous communities traditionally modified the remains of Old People so that they were no longer viewed as Old People but as an object to be used. For example, some communities used the crania (heads) to make water vessels, while other communities used remains to make sacred ceremonial objects. It is important to note that these 'modifications' were made by Indigenous peoples themselves. The view by many museums in Australia and overseas, is that these modified remains are objects and are therefore, not subject to the same repatriation policies as remains.

This can lead to some anomalies. For example, collecting institutions and even some Indigenous communities, consider items made of human hair such as paint brushes or string to be objects, while hair samples collected for research purposes, are classed as human remains and are subject to the same repatriation processes as other Old People.

FaHCSIA's current position is that it is not the role of museums or governments to determine what constitutes Old People. This is a decision for Traditional Owners. While FaHCSIA always seeks to consult with Traditional Owners where known, where modified remains have no known country some guidance is needed about the most appropriate approach.

Some museums and governments will presumably disagree with the Committee's stance on roles and more broadly on the philosophy underpinning neologisms such as Old People. That disagreement is evident in the ongoing debate about the remains of 'Kennewick Man' in the US, archaeological material that is over eight thousand years old but has been claimed by at least five US Indigenous groups, discussed in Skull Wars: Kennewick Man, Archaeology, And The Battle For Native American Identity (Basic Books, 2001) by David Thomas and Repatriation Reader: Who Owns American Indian Remains? (University of Nebraska Press, 2000) by Devon Mihesuah.

From a legal perspective aspects of the Paper are problematical. The initial statement that "For more than 150 years Aboriginal and Torres Strait Islander Old People were unlawfully removed from burials grounds, hospitals and morgues to be sent to museums, universities and private collections in Australia and overseas" arguably does not cover all collection of Indigenous and non-Indigenous material.

Feedback on the Paper is due by 5 May.