Vulnerable Kids

The three volume report of the Report of the state inquiry into Protecting Victoria's vulnerable children (aka the Cummins inquiry) has been released.

The inquiry investigated systemic problems in Victoria's child protection system. Its report features recommendations to strengthen and improve the protection and support of vulnerable young Victorians, with criticism of investigations by religious organisations into abuses of children for whom those bodies were responsible.

Volume 1 includes the Executive summary and Lists of recommendations, findings and matters for attention as well as an Implementation plan. The second volume comprises contains 23 chapters dealing with the impact of abuse and neglect, Victoria’s current system for protecting children and young people, major issues raised in submissions, a policy framework for a system to protect vulnerable children and young people, major protective system elements (eg in out-of-home care), strengthening the law protecting children and young people and realigning court processes, funding arrangements, system governance, implementation and prioritisation. Volume 3 features the appendices.

The report notes that -

The vast majority of Victoria’s children and young people live in families where they are loved, cared for and encouraged by their families. These children will be supported by their families through the highs and lows of childhood and adolescence and will grow up with the personal resources and capabilities to live independent, well-adjusted and productive lives. However, a significant number of Victoria’s children and young people are not as fortunate. Every week, nearly 60 children and young people from across Victoria are removed from their parents by the State and placed in the care of another person or organisation because there are sound reasons to believe they are at risk of significant harm.

During 2010-11, about 3,000 children and young people were placed in accommodation away from their family home. While many will return home quickly, on average, these children stay in the care of the State for about 18 months and some will move between three or more separate placements in a single year. Over the past decade, the number of Victorian children and young people in out-of-home care has increased by 44 per cent – an annual growth of around 4 per cent a year – bringing the total number of children and young people in care to 5,700 at June 2011. Some children are never able to return to their parents’ care.

People across Victoria felt so concerned about the welfare of children that they made about 55,000 reports to the Victorian Department of Human Services in 2010–11. Of these 55,000 reports, nearly 14,000 were considered sufficiently serious by the Department of Human Services that they were formally investigated. These investigations found that for 7,600 of these cases, the concerns about the safety or welfare of these children were well founded. If current rates continue, one in four children born in Victoria in 2011 will be reported to the Department of Human Services by their 18th birthday.

Of great concern is that Aboriginal children and young people are significantly over-represented in Victoria’s system for protecting children. While Aboriginal children and young people make up 1.2 per cent of the Victorian population,
they constitute around 16 per cent of children and young people on care and protection orders and are nine times more likely to be in State care than others in the general population.

Even though in 2010–11 Victoria will spend $533 million on Victoria’s statutory child protection, specialist support services and placement services and 1,200 child protection practitioners are employed in Victoria to keep children safe, young people known to the Department of Human Services still suffer significant harm or die. Over the past decade, this expenditure has increased at a faster rate than government expenditure generally. There have also been substantial investments in child and family welfare services (around $170 million in 2010–11).

The Inquiry heard many distressing experiences from and about individuals who have had personal experience with Victoria’s statutory child protection services. The Inquiry was deeply moved by individual accounts that demonstrated how child abuse and neglect, and involvement with statutory child protection, can have devastating long term effects on people, even many years after they have left the system. These experiences have influenced many of the recommendations in this Report and moved the Inquiry to make explicit and reiterate what the Inquiry believes should be a fundamental truth – that Victoria has a responsibility to protect vulnerable children and young people. The Inquiry also believes that where child abuse or neglect has occurred, the government should provide a response that ameliorates the effects of such trauma and do all in its power to ensure it does not cause further harm.

Estimates prepared by Deloitte Access Economics for the Inquiry indicate that the total lifetime financial costs of child abuse and neglect that occurred in Victoria for the first time in 2009-10 is between $1.6 and $1.9 billion. Each individual case of child abuse and neglect continues to create costs for the community long after the abuse stops, or the neglect is addressed. This is because child abuse and neglect increases the costs of health care and education, housing and supported accommodation assistance, court-related matters and crime, and leads to significant
productivity losses.

The Inquiry consulted widely and sought input across the whole of Victoria through 18 Public Sittings covering 16 different locations, hearing verbal submissions from around 130 organisations and individuals. More than 220 written submissions were made to the Inquiry from a diverse range of individuals and organisations. Consultation sessions were conducted with children and young people, Aboriginal communities, culturally and linguistically diverse community service workers and people working in Victoria’s system for protecting children. A Reference Group advised the Inquiry on policy issues and stakeholder engagement.

In response it recommends - The performance of the system protecting children and young people

1. The Government should consider, as a matter of priority, investing resources in:

• The information management systems spanning vulnerable families and children including the statutory child protection system to incorporate information on the major demographic characteristics (including culturally and linguistically diverse and Aboriginal status) and the presenting issues of vulnerable families and children;
• The regular publication of information on the characteristics of families, children and young people who have multiple interactions with the statutory child protection system to facilitate research and transparency about the performance of the system; and
• Conducting cost-benefit and feasibility assessments, including the possible governance arrangements of:

– instituting cohort or longitudinal surveys of families and children following their involvement with statutory child protection services and, over time, related services for vulnerable children and families; and
– the approach developed in Western Australia of linking de-identified health data to de-identified data from the departments of Child Protection, Education, Disability Services and Corrective Services and Housing & Community, as a means of identifying for policy and program development purposes, the factors linked with child protection reports and the nature and dimensions of the subsequent experiences and issues.

A policy framework for a system to protect vulnerable children and young people

2. The Government should develop and adopt a whole-of-government Vulnerable Children and Families Strategy. The objective of the strategy will be to establish a comprehensive government and community approach for improving Victoria’s performance in responding to Victoria’s vulnerable children and families at risk. The key elements are:

• A definition of vulnerable children and young people;
• Identified whole-of-government objectives, including specific roles and responsibilities for departments, both individually and collectively, in addressing vulnerability in children and young people;
• A performance framework, or list of the accountabilities, performance measures or indicators to be used by government to measure the efficiency and effectiveness of the strategy; and
• Accountability structures that set out appropriate oversight for monitoring the implementation of the strategy by departments and agencies, including reporting on such implementation to government and the public.

3. Performance against the objectives set out in a Vulnerable Children & Families Strategy, including information on the performance of government departments and statutory child protection services should be published regularly through The state of Victoria’s children report.

4. Area-based policy and program design and delivery should be used to address vulnerability and protect Victoria’s vulnerable children and young people. In particular, an area-based approach should be adopted for assessing outcomes specified in a Vulnerable Children and Families Strategy and for reporting on progress against performance indicators.

Preventing child abuse and neglect

5. In preparing the whole-of-government Victorian Alcohol & Drug Strategy, the Department of Health should consider the impact of alcohol and drug abuse on the safety and wellbeing of children in families where parents misuse substances.

6. The Department of Education & Early Childhood Development should implement strategies designed to encourage greater participation by the families of vulnerable children in universal services

7. The Government, through the Department of Education & Early Childhood Development, should:

• Examine the capacity of local governments in low socioeconomic status areas to provide appropriate Maternal & Child Health and Enhanced Maternal & Child Health services, consistent with the concentration of vulnerable children and families, particularly as the current funding formula for Maternal & Child Health is based on a 50% contribution by local government; and
• Increase investment and appropriate infrastructure in universal services including maternal and child health, kindergarten and community playgroups, to communities that have the highest concentration of vulnerable children and families to increase the participation of vulnerable children in these services.

The increased investment in maternal and child health and enhanced maternal and child health should focus on:

• Enhanced support to families whose unborn babies are assessed as vulnerable to abuse or neglect, especially as a result of pre-birth reports; and
• A more intensive program of outreach to families of vulnerable children who do not attend maternal and child health checks, particularly in the first 12 months of life.

8. The Department of Health should develop and lead a consistent statewide approach for antenatal psychosocial assessment so that problems such as family violence, parental mental illness and substance misuse in pregnancy can be more effectively addressed.

9. The Department of Education & Early Childhood Development, in partnership with the Department of Human Services, should develop a universal, evidence based parenting information and support program to be delivered in communities with high concentrations of vulnerable children and families, at key ages and stages across the 0 to 17 age bracket.

10. The Department of Education and Early Childhood Development should develop a wide-ranging education and information campaign for parents and caregivers of all school-aged children on the prevention of child sexual abuse.

Early intervention

11. The Department of Education and Early Childhood Development should implement the recommendations from the Auditor-General’s report on early childhood services by the end of 2012.

12. The Government should fund the expansion of early parenting centres to provide services to a greater range of vulnerable families and to improve access to families living in outer Melbourne, regional and rural areas.

13. The Department of Education & Early Childhood Development should improve its capacity to respond to the needs of vulnerable children and young people by:

• Undertaking a comprehensive evaluation of whether existing school-based programs are meeting the needs of vulnerable children and young people; and
• Introducing a population health and wellbeing questionnaire of students as they make the transition from childhood to adolescence, and publishing the outcomes in The state of Victoria’s children report.

14. The Department of Health should amend the framework for monitoring the performance of health services to hold services accountable for support they provide to vulnerable children and families, consistent with their responsibilities under the recommended whole-of-government Vulnerable Children and Families Strategy.

15. The Government should enhance its capacity to identify and respond to vulnerable children and young people by:

• Evaluating the outcomes of pre-birth reports to statutory child protection and pre-birth responses to support pregnant women;
• Providing funding to support universal early childhood services, schools, health services (including General Practitioners) and specialist adult services to identify and respond to the full range of risk factors for child abuse and neglect. This should include increased investment in the Department of Health’s Vulnerable Children’s Program; and
• Providing funding to support specialist adult services to develop family-sensitive practices, commencing with an audit of practices by specialist adult services that identify and respond to the needs of any children of parents being treated, prioritising drug and alcohol services

16. As part of a strategy to improve services for vulnerable children and families in need, the Department of Human Services should strengthen area-based planning and coordination of family services and accountability arrangements under Child FIRST by:

• Establishing Area Reference Committees to oversee the monitoring, planning and coordination of services and management of operational issues within each catchment. The Committees would be co-chaired by the Department of Human Services area manager and the chief executive officer or area manager of the lead community service organisation, and comprise a representative of each community service organisation in
the local Alliance; and
• Ensuring the funding arrangements for Alliance lead agencies clearly specify the agencies’ responsibilities for receiving referrals, undertaking an initial assessment of clients’ needs, and facilitating an appropriate service response, with appropriate performance indicators.

17. The Government should expand upon the existing local Alliances of family services and statutory child protection services to develop broader Vulnerable Child and Family Service Networks – catchment-based networks of services for vulnerable children and families, including statutory child protection, family services, specialist adult services, health services and enhanced universal services.

18. The Government should ensure the legislation governing relevant services establishes the responsibilities of services to act in the best interests of children and young people, and to prioritise service delivery to vulnerable children, young people and their families. In addition, health services and specialist adult services should be required to adopt family-sensitive practice guidelines.

Meeting the needs of children and young people in the statutory system

19. Following adoption of the Child FIRST governance changes and using a piloted approach, intake functions carried out by the Department of Human Services and by Child FIRST should be physically co-located on an area basis throughout Victoria. Statutory child protection intake should remain a separate process to child and family support services intake, but there should be an increased focus, particularly with common clients, on improving collaboration between statutory child protection and family support services and greater joint decision making about risks presenting to vulnerable children and young people.

Following implementation and evaluation of co-located intake throughout Victoria, and provided the key challenges and risks have been addressed appropriately, the Department of Human Services should aim to move towards a consolidated intake model where Child FIRST and statutory child protection intake processes are combined.

20. The Department of Human Services should introduce differentiated pathways as part of the statutory child protection response, with some increased case management by community service organisations.

The two pathways that should be adopted immediately should involve first-time contact families and the use of multidisciplinary centres to respond to suspected child sexual abuse victims. Following collaboration between the Department of Human Services and key stakeholders, two additional pathways should be adopted to address the needs of families that have repeated contact with the Department of Human Services and families experiencing chronic and entrenched vulnerability.

21. The Department of Human Services should simplify case planning processes and improve collaboration and pathways between statutory child protection services and other services, particularly family violence and disability services.
The Department of Human Services should increase case conferencing with other disciplines and services related to child protection issues including housing, health, education, drug and alcohol services and particularly for family violence and disability services. In relation to family violence, consideration should be given to the evidence base for establishing differentiated pathways that lead to improved outcomes along the lines of those pathways discussed in Recommendation 20. The protocol between statutory child protection and disability services should be strengthened, with more explicit statements around the roles and responsibilities of the different service agencies.

22. The Department of Human Services should simplify practice guidance and instructions for child protection practitioners.

The Department of Human Services should reduce practice complexity by consolidating and simplifying the number of standards, guidelines, rules and instructions that child protection practitioners must follow. This process should investigate and apply learnings from comparatively high-risk sectors such as health or aviation in the approach taken to risk management and adverse events.

23. The Department of Human Services should identify and remove barriers to achieving the most appropriate and timely form of permanent placements for children unable to be reunited with their biological family or to be permanently placed with suitable members of the extended family by:

• Seeking parental consent to adoption, and where given, placing the child in a suitable adoptive family;
• Pursuing legal action to seek the dispensation of parental consent to adoption for children whose
circumstances make them eligible under section 43 of the Adoption Act 1984;
• Resolving the inconsistency between practical requirements for child protection practitioners to simultaneously plan for reunification while contemplating permanent care arrangements; and
• Reviewing the situation of every child in care who is approaching the stability timeframes as outlined in the Children, Youth & Families Act 2005, to determine whether an application for a permanent care order should be made. Where it is deemed not appropriate to do so (for example, where a child’s stable foster placement would be disrupted), the decision not to make application for a permanent care order should be endorsed at a senior level.

Meeting the needs of children and young people in out-of-home care

24. The Department of Human Services and community service organisations should continue to support the Who Am I Project on out-of-home care record-keeping to enable children and young people to access all records of relevance and, as appropriate, be provided with a personal record when leaving care.

25. The Government should, as a matter of priority, establish a comprehensive five year plan for Victoria’s out-of-home care system based on the goal, over time, of the growth in the number of Victorian children and young people in care being in line with the overall growth in Victorian children and young people and the objective of improving the stability, quality and outcomes of out-of-home care placements. The key elements of the plan should include:

• Significant expansion in placement prevention initiatives to divert children from out-of-home care. In particular, increased investment in placement diversion and re-unification initiatives, when the safety of the child has been professionally assessed, involving intensive and in-home family support and other services for key groups such as families of first-time infants and young children;
• More timely permanent care where reunification is not viable;
• All children and young people entering out-of-home care undergo comprehensive health, wellbeing and education assessments;
• All children in out-of-home care receive appropriate therapeutic care, education and other services;
• Progressive adoption of client-based funding to facilitate the development of individual and innovative responses to the needs of child and young people who have been the subject of abuse and neglect;
• The introduction over time of a professional carer model to provide improved and sustained support for children and young people with a focus on lowering the use of residential care;
• Significant investment in the funding and support arrangements for:

– home-based care including a common service and funding approach across foster care, kinship and permanent care and improved carer training, support and advocacy arrangements;
– residential care including mandating training and skill requirements for residential and other salaried care workers (i.e. the proposed professional care model); and

• The adoption of an area-based approach to the planning, delivery and monitoring of out-of-home care services and outcomes involving the Department of Human Services, community service organisations and other relevant agencies.

Given the underlying trends and quality issues, implementation of this plan will require significant investment.

26. To provide for the clear and transparent development of a client-based funding, the Government should request the Essential Services Commission to advise on:

• The design of a client-based funding approach for out-of-home care in Victoria; and
• The unit funding of services for children and young people placed in care.

27. The Victorian Government should, as a matter of priority, give further detailed consideration to the professional carer model and associated arrangements and request that the Commonwealth Government address and resolve, as a matter of priority, significant national barriers associated with establishing this new category of worker including industrial relations and taxation arrangements.

The experiences of children and young people when leaving out-of-home care

28. The Department of Human Services should collect regular information on the experiences of young people leaving care and their access to leaving care and post-care services and report the initial findings to the Minister in 2012 and thereafter on an annual basis to the proposed Commission for Children & Young People.

29. The Department of Human Services should have the capacity, including funding capacity, to extend the current home-based care and residential care out-of-home placement and support arrangements, on a voluntary and needs basis, for individual young people beyond 18 years of age.

30. The Department of Human Services should:

• Ensure all leaving care plans identify stable initial accommodation options and that a ‘no discharge to
temporary and inappropriate accommodation policy’ is adopted;
• Review the levels and range of leaving and post-care financial assistance provided to care leavers as part of the development and implementation of the proposed Leaving Care Employment and Education Access Program, including appropriate representations to the Commonwealth Government on their current employment and education assistance programs; and
• Assess the impact of the current leaving care services and programs, as a matter of priority, to determine whether the necessary access to, and integration of, post-care support across the full range of health, housing and other services is being achieved.

31. The Government should consider, in the medium term, the availability of post-care support and periodic followup being extended, on a needs basis, until a young person reaches the age of 25 years.

Meeting the needs of Aboriginal children and young people

32. More detailed monitoring should be developed for the Victorian Indigenous Affairs Framework that provides reports on outcomes at the operational level regarding key areas of disadvantage (such as education attainment or family violence) and in specific localities with high prevalence rates of risk factors for abuse and neglect.

33. Aboriginal cultural competence should be a feature of the Department of Human Services standards for community service organisations. Further, the performance of agencies in relation to cultural competence should be an area of specific focus in the next cycle of community service organisation registration.

34. The Government should expand the use and effectiveness of culturally competent approaches within integrated family services and statutory child protection services through the Department of Human Services by:

• Establishing funding arrangements with the Aboriginal Child Specialist Advice and Support Service that enable cultural advice to be provided across the full range of statutory child protection activities;
• Using the Aboriginal Family Decision Making program as the preferred decision making process if an Aboriginal child in statutory child protection services is substantiated as having suffered abuse or neglect;
• Expanding family preservation and restoration programs so they are available to Aboriginal families in rural and regional areas with significant Aboriginal populations;
• Expanding Aboriginal kinship care support to provide support to all Aboriginal kinship carers; and
• Expanding Aboriginal family support programs so they are available to Aboriginal families in areas with significant Aboriginal populations.

35. As part of the creation of a Commission for Children and Young People, an Aboriginal Children’s Commissioner or Deputy Commissioner should be created to monitor, measure and report publicly on progress against objectives for vulnerable Aboriginal children and young people across all areas of government activity, including where government provides resources for non-government activities.

36. The Department of Human Services should develop a comprehensive 10 year plan to delegate the care and control of Aboriginal children removed from their families to Aboriginal communities. This would include:

• Amending section 18 of the Children, Youth & Families Act 2005 to reflect Aboriginal community decision making processes and address current legislative limitations regarding implementation;
• Developing a sustainable funding model to support transfer of guardianship to Aboriginal communities that recognises the cost of establishing an alternative guardianship pathway. These arrangements would initially be on a small scale and require access to significant legal advice, legal representation, practice advice, specialist assessments and therapeutic treatment;
• Developing a statewide plan to transfer existing out-of-home care placements for Aboriginal children and young people from mainstream agencies to Aboriginal community controlled organisations and guide future resource allocation (with performance/registration caveats and on an area basis);
• Providing incentive funds for Aboriginal community controlled organisations to develop innovative partnership arrangements with mainstream providers delivering out-of-home care services to Aboriginal children to connect them to their culture;
• Targeting Aboriginal community controlled organisations capacity building to these activities, that is, guardianship, cultural connection and provision of out-of-home care services; and
• Providing increased training opportunities for Aboriginal community controlled organisation staff to improve skills in child and family welfare.

The proposed Aboriginal Commissioner or Deputy Commissioner for children and young people should report on performance against this plan.

Meeting the needs of children and young people from culturally and linguistically diverse communities

37. To improve knowledge and data on vulnerable children of culturally and linguistically diverse backgrounds so that the appropriateness of current service provision can be considered:

• The Department of Human Services should collect data to record and track children and young people of culturally and linguistically diverse backgrounds who are involved with the child protection system, and the family services sector; and
• The Department of Education & Early Childhood Development should include data on the experiences of vulnerable children and young people of culturally and linguistically diverse backgrounds (including in Victoria’s system for protection children) in The State of Victoria’s Children report.

38. The Victorian Government, through the Council of Australian Governments, should seek inclusion of the needs of recently arrived children and families of culturally and linguistically diverse backgrounds in the National Framework for Protecting Australia’s Children 2009-2020, in particular:

• The need to provide advice and information about Australian laws and norms regarding the rights and responsibilities of children and parents; and
• Appropriate resettlement services for refugees to prevent abuse and neglect of refugee children.

Strengthening the law protecting children and young people

39. Victoria Police should change the brief authorisation process for allegations of child physical assault so that authorisation is conducted by a specialist senior officer.

40. The Department of Justice should lead the development of a new body of data in relation to criminal investigation of allegations of child physical and sexual abuse, and in particular the flow of reports from the Department of Human Services to Victoria Police. Victoria Police, the Office of Public Prosecutions, the Department of Human Services and the courts should work with the Department of Justice to identify areas where data collection practices could be improved.

41. The best interests principles set out in section 10 of the Children, Youth and Families Act 2005 should be amended to include, as section 10(3)(a), ‘the need to protect the child from the crimes of physical abuse and sexual abuse’.

42. The following Acts should be amended to ensure that service providers assisting adults also have a clear responsibility to the children of their clients:

• Disability Act 2006;
• Education and Training Reform Act 2006;
• Health Services Act 1988;
• Housing Act 1983;
• Mental Health Act 1986; and
• Severe Substance Dependence Treatment Act 2010.

43. The Children, Youth and Families Act 2005 should be amended to address the following issues:

• Section 215(1)(c) that requires the Family Division of the Children’s Court to consider evidence on the ‘balance of probabilities’ should be amended to expressly override the considerations in section 140(2) of the Evidence Act 2008 and to disapply the Briginshaw qualification that requires a court to take into account the nature of the subject matter of the proceeding and the gravity of the facts alleged;
• The definition of ‘child’ in section 3 should be amended to make it possible for protection applications in respect of any child under the age of 18 years; and
• Out dated terms in the Children, Youth & Families Act 2005 associating child protection with criminal law should be modernised and consideration should also be given to using terms consistent with the Family Law Act 1975. This includes: substituting the term ‘emergency removal order’ for ‘warrants’; the term ‘protection application by emergency removal’ for ‘protection application by safe custody’; and the word ‘contact’ for ‘access’ when describing contact between a child and a parent or other person significant in the child’s life.

44. The Victorian Government should progressively gazette those professions listed in sections 182(1)(f) - (k) of the Children, Youth and Families Act 2005 that are not yet mandated, beginning with child care workers. In gazetting these groups, amendments will be required to the Children, Youth and Families Act 2005 and to the Children’s Services Act 1996 to ensure that only licensed proprietors of, and qualified employees who are managers or supervisors of, a children’s service facility that is a long day care centre, are the subject of the reporting duty.

45. The Department of Human Services should develop and implement a training program and an evaluation strategy for mandatory reporting to enable a body of data to be established for future reference. This should be developed and implemented in consultation with the representative bodies or associations for each mandated occupational group.

46. The Victorian Government should obtain the agreement of all jurisdictions, through the Council of Australian Governments or the Community and Disability Services Ministers’ Conference, to undertake a national evaluation of mandatory reporting schemes with a view to identifying opportunities to harmonise the various statutory regimes.

47. The Crimes Act 1958 (Vic) should be amended to create a separate reporting duty where there is a reasonable suspicion a child or young person who is under 18 is being, or has been, physically or sexually abused by an individual within a religious or spiritual organisation. The duty should extend to:

• A minister of religion; and
• A person who holds an office within, is employed by, is a member of, or a volunteer of a religious or spiritual organisation that provides services to, or has regular contact with, children and young people.

An exemption for information received during the rite of confession should be made. A failure to report should attract a suitable penalty having regard to section 326 of the Crimes Act 1958 and section 493 of the Children, Youth and Families Act 2005.

48. A formal investigation should be conducted into the processes by which religious organisations respond to the criminal abuse of children by religious personnel within their organisations. Such an investigation should possess the powers to compel the elicitation of witness evidence and of documentary and electronic evidence.

49. Section 146 of the Family Violence Protection Act 2008 should be extended to permit the Children’s Court to exercise jurisdiction under that Act when a child who is the subject of a child protection application is a child of ‘the affected family member’ or ‘the protected person’.

50. Sections 182-186 of the Serious Sex Offenders (Detention and Supervision) Act 2009, which provide for the making of supression orders, should be repealed (Recommended by majority).

51. The Victorian Government should, consistent with other Australian jurisdictions, enact an internet grooming offence.

52. A national study should be undertaken to improve current knowledge and understanding of the causes of filicide and the behavioural signs preceding filicide. Such a study could be undertaken by a research body such as the Australian Institute of Criminology.

Realigning court processes to meet the needs of children and young people

53. The Children, Youth and Families Act 2005 should be amended to provide that:

• A child named on a protection application should have the formal status of a party to the proceedings;
• A child who is under 10 years of age is presumed not to be capable of providing instructions unless shown otherwise and a child who is 10 years and over is presumed capable of providing instructions unless shown otherwise;
• A child who is not capable of providing instructions should be represented by an independent lawyer on a ‘best interests’ basis; and
• Other than in exceptional circumstances, a child is not required to attend at any stage of the court process in protection proceedings unless the child has expressed a wish to be present in court and has the capacity to understand the process.

54. The Victorian Government should develop guidelines to assist the court, tribunal, or the independent children’s lawyer to determine whether the child is capable of giving direct instructions and to provide criteria by which the presumption of capacity can be rebutted.

55. The Children’s Court should be resourced to decentralise the Family Division by offering more sitting days at Magistrates’ Courts or in other customised facilities in those Department of Human Services regions with high demand. Existing court facilities should be adapted as appropriate to meet the needs of children and their families.

56. The Children’s Court should develop a case docketing system that will assign one judicial officer to oversee one protection matter from commencement to end. In order to evaluate the effectiveness of the system, the system should be piloted at an appropriate court location. The Department of Justice should support the Children’s Court to establish the system.

57. The Children’s Court should be empowered under the Children, Youth and Families Act 2005 to conduct hearings similar to the Less Adversarial Trial model used by the Family Court under Division 12A of the Commonwealth Family Law Act 1975.

58. Appropriate training in infant and child development, child abuse and neglect, trauma, and child interviewing techniques should be developed and provided to lawyers practising in the Children’s Court jurisdiction and in the Victorian Civil & Administrative Tribunal, having regard to the training offered to independent children’s lawyers in the family law jurisdiction. This training should be a prerequisite for any lawyer seeking to represent a child on a direct representation or best-interests basis in proceedings before the Children’s Court and should be an accredited course. Appropriate education should be provided to judicial officers exercising the jurisdiction of the Children’s Court and members exercising the jurisdiction of the Victorian Civil and Administrative Tribunal. The Victorian Government should consult with the relevant professional organisations and also seek the assistance of the Judicial College of Victoria in developing an appropriate professional education program.

59. The Victorian Government Solicitor’s Office should represent the Department of Human Services in all child protection proceedings in the Melbourne Children’s Court and other metropolitan and regional Children’s Court sittings and at the Victorian Civil and Administrative Tribunal. Department of Human Services lawyers should represent the department at the pre-court conferencing stage.

60. Protection concerns should be resolved as early as possible using a collaborative problem-solving approach with a child-centred focus and minimising where possible, the need for parties to go to Court. This means that:

• The Department of Human Services should, where appropriate, use voluntary Family Group Conferencing as a matter of practice to prevent matters from reaching the protection application stage;
• Where a matter has reached the protection application stage, parties must try to resolve the protective concern, where appropriate, through a statutorily mandated Child Safety Conference set out in the Children, Youth and Families Act 2005; and
• Where a matter is before the Children’s Court, parties should, where appropriate, go through a New Model Conference and the Children’s Court should be supported to implement this model of conferencing across the state.

61. Victoria Legal Aid should implement fee penalties for lawyers who fail to take adequate steps to ensure their clients’ attendance at a New Model Conference and lawyers who repeatedly fail to do so should not be engaged by Victoria Legal Aid. This should also be addressed in the code of conduct being proposed for practitioners in 2012.

62. The Children’s Court should establish specialist Sexual Abuse and Koori lists in the Family Division. The Children’s Court should be resourced to create and implement these lists as a matter of priority. To ensure these lists are suitable for implementation across the state, a pilot could be run in the Melbourne Children’s Court or another suitable court location.

63. The current scheme of protective orders under the Children, Youth and Families Act 2005 should be simplified. This can be achieved by reviewing the scope and objectives of each order and their current utility. Consideration should be given to:

• Removing Custody to Third Party Orders as a category of order from the Children, Youth and Families Act 2005;
• Removing Temporary Assessment Orders as a category of order from the Children, Youth and Families Act
2005;
• Creating a general ‘Interim Order’ which could incorporate the current functions of an Interim
Accommodation Order and a Temporary Assessment Order;
• Renaming ‘Interim Protection Order’ as either a ‘Temporary Supervision Order’ or ‘Temporary Care Order’; and
• Consolidating the current range of protection orders into categories of ‘Interim’ and ‘Final’ orders and into categories of ‘Care’ and ‘Supervision’ orders while maintaining the range of purposes that the various orders currently serve.

64. A specialist Child Protection List should be created in the Victorian Civil and Administrative Tribunal in order to hear any reviews of decisions by the Department of Human Services on conditions. The Victorian Civil and Administrative Tribunal should be resourced to ensure that the members who would determine disputes within that specialist list have appropriate qualifications and expertise in child abuse and neglect and child health and wellbeing. The current legal aid guidelines should be amended to enable parties who seek a review of decisions by the Department of Human Services at the Victorian Civil and Administrative Tribunal to be eligible to obtain legal aid representation without requiring special consideration.

65. The Children, Youth and Families Act 2005 should be amended to confirm the status of the Children’s Court as a court of record. The Children’s Court should be appropriately resourced to enable decisions to be published on the Children’s Court’s website in de-identified form. Transcripts should also be made available to the public in de-identified form.

66. A new Children’s Court of Victoria Act should be created and that Act should contain the current provisions in the Children, Youth and Families Act 2005 relating to the Children’s Court, appropriately modified. The Children, Youth and Families Act 2005 should be revised consequent upon removal of the provisions relating to the Children’s Court.

A workforce that delivers quality services

67. The Government should establish a child and family welfare sector training body to oversee development of an industry-wide workforce education and development strategy. This strategy should focus on consolidating the number of separate training budgets and strategies relating to child protection and family services. This body should focus on:

• Developing the professionalism of the sector;
• Providing opportunities for continuing professional education including training and career path opportunities for workers entering at the Child Protection Worker-1 level;
• Addressing the education and training needs of the out-of-home care sector including carers;
• Overseeing and evaluating current training and development efforts, with an initial emphasis on assessing the adequacy of the Beginning Practice training offered to new child protection workers;
• Ensuring relevant training is consistent with national training frameworks and appropriately accredited;
• Identifying opportunities for providing combined training to government child protection workers, the community sector workforce and other professions;
• Coordinating the delivery of internal Department of Human Services courses;
• Procurement of other courses from external providers; and
• Collaborating with professional bodies and universities in disciplines that interact with vulnerable children to develop curriculum content relevant to the prevention of and response to child abuse and neglect.

The training body should be established as a public entity, with dedicated funding and staffing resources, and governed by a board drawn from the government and non-government sector. It should be led by an independent chair with expertise related to the professional education and training needs of the sector.

68. The Department of Human Services should improve the cultural competence of integrated family services and statutory child protection services, including through:

• Applying leadership accountability for culturally competent services and client satisfaction at regional service delivery level through performance agreements;
• Requiring cultural competence to be a component of all training;
• Providing culturally appropriate training, assistance and support to carers of children and young people from culturally and linguistically diverse backgrounds in the out-of-home care system;
• Encouraging local child and family services to draw links with relevant culturally and linguistically diverse communities as part of area-based planning reforms;
• Recruitment strategies to attract suitable candidates from Aboriginal and culturally and linguistically diverse backgrounds into child protection including through the use of scholarship schemes to undertake relevant tertiary-level training; and
• Exploring staff exchange and other joint learning programs on an area basis to build knowledge and respect for Aboriginal culture.

Community sector capacity

69. The future relationship between the Department of Human Services and community service organisations should be based on a model where:

• The Victorian Government is responsible for the overall policy leadership and accountability for the structure and performance of the child, youth and family support and service system; and
• The capacities and service delivery roles of community service organisations for the provision of vulnerable children and families are reflected in collaborative service system planning and performance monitoring at a regional and area level.

70. The Department of Human Services should review and strengthen over time the governance and performance requirements of community service organisations providing key services to vulnerable children and their families, while also playing a proactive facilitation and support role in community services sector organisational development.

71. The Department of Human Services should:

• Consult with the community services sector on the implications of the future system and service directions outlined in this Report for the future structure of service provision and requirements of community service organisations; and
• Establish one-off funding and other arrangements to facilitate the enhancement and adjustment of community service organisations.

Court clinical services

72. Section 562(4)(a) of the Children, Youth and Families Act 2005, which confers a discretion on the Children’s Court to not release all or part of a clinical report to the Department of Human Services if satisfied that the release of the report could cause significant psychological harm to a child, should be repealed.

73. The Children, Youth & Families Act 2005 should be amended to:

• Empower the clinical service provider to provide a report at the request of the Children’s Court, or at the request of the Victorian Civil and Administrative Tribunal, or at the request of the parties to the proceedings;
• Prohibit the clinical service provider from making any disposition recommendations in its report;
• Enable the Department of Human Services to release clinic reports to carers or case managers who have a direct involvement with the child or young person subject to appropriate safeguards around the use and dissemination of those reports; and
• Require a clinical assessment to take into account information provided to the clinical assessor by the parties, particularly where the clinical assessor is unable to assess the child, young person or the family within their home environment.

74. The scope, governance and oversight of the provision of clinical services in the statutory child protection system should be reformed:

• As an immediate priority, the current Children’s Court Clinic should be abolished and re-established as an administrative unit within the Department of Health; and
• In the medium to long term, the administrative unit should be replaced by a statutory clinical services board that will oversee service provision by a panel of providers. The parties to protection applications, or the Children’s Court or the Victorian Civil and Administrative Tribunal, should be able to use a panel clinical service provider to provide a clinic report.

75. The Government should implement the following legislative and administrative changes to support the recommended reform of clinical services.
Scope and governance
The Children, Youth and Families Act 2005 should be amended to:

• Set out the new statutory board’s and clinical service provider’s objectives and tying these objectives, where appropriate, to the best interest principles in the Act;
• Define the type of clinical services to be provided within the statutory child protection system and the services to be provided within the criminal justice system; and
• Require the statutory board to publish an annual report.
Clinic access and environment in the immediate term
• The administrative unit should be relocated from the Children’s Court, but the Government should ensure the Court still has access to on-site counselling and support services to deal with children, youth, and families who may be experiencing acute stress in the court environment; and
• Clinical services should be decentralised as a priority to ensure the needs of children, young people and their families are met across Victoria, as outlined in the 2011 report on the Children’s Court Clinic prepared for the Department of Justice.
Resourcing of the Clinic in the immediate term
• The administrative unit should be resourced to: expand the current pool of assessors available to the Clinic; provide the proper level of remuneration to both permanent and sessional clinicians commensurate with their professional expertise; implement the process and quality assurance reforms as recommended in the 2011 report on the Children’s Court Clinic prepared for the Department of Justice; and provide therapeutic treatment services, where appropriate, for children, young people and their families by agreement of the parties, or at the request of the Court, or the Victorian Civil and Administrative Tribunal; and
• The Government should, in consultation with the new statutory board, ensure the new administrative unit is properly funded and resourced to provide the necessary services to meet its statutory objectives with a view to establishing a panel of clinical service providers in the medium to long term.

Funding arrangements

76. Future funding of child protection and family services should recognise and anticipate the underlying growth in demand in future budget processes for statutory child protection, out-of-home care and family services.

77. Funding for child protection and family services should be distributed in accordance with an area-based approach and according to a common methodology. The Department of Human Services should develop this methodology so that funding is distributed on an equitable basis to the areas that need it most. The methodology should take into account:

• The population of children in a region;
•The level of vulnerability of these children, including the Aboriginal population; and
• Factors that increase the cost of service delivery in regions, such as remoteness and the geographic size of the area.

The method should be able to be regularly updated and should be incorporated into future system planning.

78. The Department of Human Services should review the list of individual placement and support, and community and family services activities provided by community service organisations. The number of these activities and their funding arrangements should be consolidated as part of adopting a more client-focused approach based on broader service types.

79. The Government should adopt an explicit policy of fully funding child protection and family services delivered through community service organisations, including provision for infrastructure and other relevant indirect costs. On an ongoing basis, there should also be a greater level of independent oversight of the Government’s role as the sole purchaser of services delivered through community service organisations. The Essential Services Commission should be given an ongoing role to periodically determine the appropriate prices for child protection and family services that are delivered through community service organisations.

The role of government agencies

80. The Government should establish a Children’s Services Committee of Cabinet comprising the minsters responsible for community services, children, education, health, community development and justice to oversee:

• The development and implementation of the whole-of-government Vulnerable Children and Families Strategy;
• The coordination of the service delivery by government agencies, particularly to vulnerable children and their families; and
• Holding government agencies accountable for their delivery of services with regard to vulnerable children.

81. The Government should amend relevant legislation to provide that the Secretaries of the Department of Education & Early Childhood Development and the Department of Health are responsible for the education and health outcomes, respectively, of children and young people in State care, with responsibility for these services under the Children Youth & Families Act 2005 being removed from the Secretary of the Department of Human Services.

82. Government performance against the whole-of-government Vulnerable Children and Families Strategy should be reported on by the Commission for Children and Young People.

83. The Child Wellbeing & Safety Act 2005 should be amended to give the Children’s Services Coordination Board greater operational responsibility for coordinating policy, programs and services that affect children and young people. Activities would include:

• Overseeing implementation by government agencies of the Vulnerable Children and Families Strategy and reporting on this to the Children’s Services Committee of Cabinet;
• Proactively fostering the development of local area partnerships, through the regions and Regional Management Forums, to assist in the coordination and delivery of area-based policies and services to address the needs of vulnerable children, including structuring and reporting on area-based performance indicators;
• Proposing an annual work program for approval the Cabinet Committee;
• Reporting annually on activities and achievement; and
• Functioning as a source of advice on budgetary matters regarding vulnerable children.

84. The Government should strengthen and clarify the role of the Victorian Children’s Council by:

• Requiring the development of an annual work plan to be signed off by the Premier;
• Providing for the Premier and Ministers for Children, Early Childhood Development and Community Services to refer matters to the Victorian Children’s Council for consideration;
• Allowing it to also provide advice to the proposed Commission for Children and Young People, if requested by the Commission; and
• Appointing a person with expertise in the needs of children of culturally and linguistically diverse backgrounds.

Further, the Children Youth and Families Act 2005 should be amended to remove the Child Safety Commissioner, or the successor commission, from the membership of the Victorian Children’s Council.

The Victorian Children’s Council should be reviewed after two years.

Regulation and oversight

85. The Department of Human Services should adopt a risk-based approach to monitoring and reviewing community service organisation performance, involving greater use of unannounced inspections and reviewing the performance of higher risk agencies more frequently than lower risk agencies.

86. The Department of Human Services should retain responsibility for regulating out-of-home care services and family services. This function should be independent and structurally separated from those parts of the department responsible for child protection and family services policy and funding of community service organisations. The director of the unit should report directly to the Secretary.

87. The Department of Human Services should take lead responsibility for formal care reviews.

88. The Department of Human Services should produce a comprehensive annual report on its regulation and monitoring of community service organisations. This report should include information on:

• The registration of community service organisations and their performance against the standards;
• The registration and disqualification of out-of-home carers;
• Category one critical incidents;
• Quality of care concerns, investigations of abuse in care and formal care reviews; and
• Actions taken against community service organisations.

In addition to this annual reporting, the Department of Human Services should immediately publish any decisions take regulatory action against community service organisations, such as the placement of conditions on In to a community service organisation’s registration, the appointment of an administrator, or the revocation of registration.

89. The Government should amend the Child Wellbeing and Safety Act 2005 to establish a Commission for Children and Young People, comprising one commissioner appointed as the chairperson and such number of full-time and part-time additional commissioners as the Premier considers necessary to enable the Commission to perform its functions. Commissioners would be appointed by the Governor-in-Council. The Commission should have responsibility for overseeing and reporting to Ministers and Parliament on all laws, policies, programs and services that affect the wellbeing of vulnerable children and young people. The Commission would hold agencies to account for meeting their responsibilities as articulated in the Vulnerable Children and Families Strategy and related policy documents. The Commission would also retain the current roles and functions of the Child Safety Commissioner. The Commission would be required by legislation to give priority to the interests and needs of vulnerable children. The Commission should have authority to undertake own-motion inquiries into systemic reforms necessary to improve the wellbeing of vulnerable children and young people. The specific powers granted to the Ombudsman under s 20 of the Children, Youth & Families Act 2005 should be transferred to the Commission.

90. The Commission for Children and Young People should convene a multidisciplinary committee such as the Victorian Child Death Review Committee to provide advice to the Commission during the course of the Commission’s inquiries into child deaths. This committee should replace the Victorian Child Death Review Committee.

Classification

The Australian Law Reform Commission has released Classification—Content Regulation and Convergent Media (ALRC Report 118), its ambitious 400 page Final Report for the National Classification Scheme Review.

The full report makes 57 recommendations for a technology-neutral, comprehensive and national regime covering the "convergent media landscape". The recommendations are founded on eight principles -

1) Australians should be able to read, hear, see and participate in media of their choice;

2) communications and media services available to Australians should broadly reflect community standards, while recognising a diversity of views, cultures and ideas in the community;

3) children should be protected from material likely to harm or disturb them;

4) consumers should be provided with information about media content in a timely and clear manner, and with a responsive and effective means of addressing their concerns, including through complaints;

5) the classification regulatory framework needs to be responsive to technological change and adaptive to new technologies, platforms and services;

6) the classification regulatory framework should not impede competition and innovation, and not disadvantage Australian media content and service providers in international markets;

7) classification regulation should be kept to the minimum needed to achieve a clear public purpose; and

8) classification regulation should be focused upon content rather than platform or means of delivery.

Key features of the proposed regime are -

• Platform-neutral regulation - one legislative regime establishing obligations to classify or restrict access to content across media platforms.

• Clear scope of what must be classified - that is feature films, television programs and certain computer games that are both made and distributed on a commercial basis and have a significant Australian audience.

• A shift in regulatory focus to restricting access to adult content - imposing new obligations on content providers to take reasonable steps to restrict access to adult content and to promote cyber-safety.

• Co-regulation and industry classification - more industry classification of content and industry development of classification codes, subject to regulatory oversight.

• Classification Board benchmarking and community standards - a clear role for the Classification Board in making independent classification decisions using classification categories and criteria that reflect community standards.

• An Australian Government scheme - replacing the current classification cooperative scheme with enforcement of classification laws under Commonwealth law.

• A single regulator - with primary responsibility for regulating the new scheme.

Marriage

'What's in a Name? The Case for the Disestablishment of Marriage' by Carolyn McConnell comments -

The most remarkable social change of the past two decades has been the movement for gay rights focused on the right to marry. The movement for gay marriage has made urgent the question of what the right to marry might be and indeed what marriage is. Marriage is, among other things, a sacred and expressive institution imbued with robust notions of the good life, but it is also a state license. That is, in our society, marriage is established as religion is not.

This paper addresses the question begged by centuries of American jurisprudence: Is marriage after all, as the Supreme Court in Reynolds v. United States presumed, an institution with 'which government is necessarily required to deal'? To demonstrate the costs that come with state establishment of marriage and to make marriage visible as a system of state intervention rather than a natural fact, I look at marriage through the lens of a largely forgotten piece of American legal history: the Mormon polygamy cases, which vividly demonstrate the contradictions and injustices inherent in the liberal state’s involvement in marriage.

This paper’s claims are that, first, excluding same-sex couples from state-established marriage cannot be defended and violates the Constitution. However, second, this exclusion is specifically a violation of the Equal Protection Clause, not the Due Process Clause, and therefore disestablishment of marriage is constitutionally permissible. Third, establishment of marriage leads to violations of our liberal ideals without corresponding benefit. The state can and should get out of the marriage business.

McConnell asks -

If the state gets out of the marriage business, there remain a number of alternatives. First, the state could abolish marriage. Perhaps that means forbidding people from entering anything called “marriage.” This would be the flip side of what it does now; the state would shift from licensing use of the word to forbidding it altogether. Even more draconian, the state could forbid entering into anything that looks like marriage. These two would have many of the same problems as the system of state licensing of marriage, and then some. It would interfere with a multitude of genuine due process rights: rights of intimate association, of establishing a home and raising children, the free speech right, and freedom of religion. This is a non-starter.

Alternatively, the state could just abandon the field to contracts and religions. People would be free to make whatever arrangements they liked, sanctifying them or not in whatever way they liked. The answer to why this is likely an inadequate solution requires answering the question begged by centuries of jurisprudence and by this paper so far.

Because of the triumph of the romantic idea of marriage over the earlier contractual and authoritarian concept of marriage, and perhaps heightened by the decline in marriage’s cultural centrality, the question what marriage is for is an uncomfortable one in our culture. People now often conceive of marriage as something they enter to seek individual happiness, so it can seem crass to look for an extrinsic purpose to marriage. But marriage as an institution long preceded this romantic ideal (nor is it clear that a uniform societal institution is well-suited to satisfying individuals’ myriad desires). We should look deeper. It is reasonable to presume that such a central fixture of human life, practiced in some form by almost all human cultures, is a response to some feature of the human condition. What is that feature?

Essential to the human condition are our long periods of dependency, on both ends of life. We are not, contrary to Hobbes, mushrooms sprung from the earth, and autonomy, though an ideal, is far from the default. I believe, following Martha Fineman, that marriage is a response to the human condition of dependency. As a species, because of our long infancies and childhood and our potentially long periods of old age, we are characterized by dependency. All of us reached adulthood only after a long stretch of dependency, and many of us will experience dependency later in life due to disability, illness, or old age.

Fineman characterizes this as inevitable dependency, and she identifies a second type of dependency generated by the first type: Those who provide caregiving require resources that they themselves cannot generate because of their caregiving responsibilities. Therefore caregivers are dependent on resources with which to sustain themselves and those they care for. Fineman calls this derivative dependency. Marriage is a response to these two types of dependency. As Fineman puts it, marriage is a “repository for dependencies.” Specifically, it is a way of privatizing dependency, rather than assigning responsibility for both types of dependency more broadly across society. Marriage was once the framework for “protecting and providing for the legal and structurally devised dependency of wives.” Because of that structural dependency, it was nearly impossible for women to care for children outside of marriage. Nowadays, as women’s structural dependency has receded, the barriers to caring for children outside of marriage have receded, as demonstrated in the rates of out-of-wedlock births. Thus, much of dependency has vacated our primary social institution for dealing with it.

Shifting our focus from romantic love to dependency allows us to sort intimate associations into those relationships that can justly be left to contract from those that cannot and in which there is a proper role for the state in creating institutions. Failing to distinguish these categories is where, for example, the Law Commission of Canada, in its otherwise thoughtful and groundbreaking 2001 report on marriage law reform, did not quite get it right. “Recognizing and supporting personal adult relationships that involve caring and interdependence is an important state objective.” Why this focus solely on adult relationships? Romance does not need the state. Contract doctrine presumes relationships between equals who freely consent to agreements that thereby embody and advance their freedom. Intimate associations between able- bodied adults without responsibility for children or disabled or elderly relatives meet these requirements. Current family law implicitly recognizes this, in enforcing premarital contracts for property and spousal support purposes - but not child support.

Relationships between autonomous adults are a small minority of intimate relationships. Other relationships - those involving dependents and caregivers - cannot be conceptualized as relationships between freely consenting equals. Therefore for these relationships, justice requires some other framework besides contract. Furthermore, it is these relationships with which the state is properly concerned because it is through the provision of care that society is reproduced. Caregiving, as the Skinner court did not quite see, is “fundamental to the very existence and survival of the race.” Only some persons are derivatively dependent due to providing caregiving, but the entire society depends upon and benefits from their caregiving. Justice therefore requires that the state support and reward the provision of care.

What might an institutional framework for this look like? How would responsibility for caregiving be allocated between state and family? The least revolutionary solution would be to stick close to marriage: civil unions for all. This would look a lot like marriage without the involvement of religion, gender roles, and all the historical freight of the term marriage. It would retain the current allocation of responsibilities for caregiving between state and families and would likely perpetuate nuclear families with a sexual pair at its heart as the default family form.

Perhaps the assumption of a sexual relationship at the heart of our state-recognized unions should be jettisoned. Martha Fineman argues that a focus on dependency and caregiving would shift the focus from the sexual couple dyad to that of mother and child, or more broadly caregiver and dependent. This would suggest that many of the traditional limitations on marriage are irrelevant. If the relationship is not about sex but about caregiving, why shouldn’t two sisters enter the relationship, or four people or five?

Would the institution necessarily even involve more than one adult? That is, if the relevant relationship is between caregiver and dependent, should we jettison the last resemblance to contract and cease thinking of it as a license between adults? Perhaps a single adult might acquire a license recognizing her relationship to her dependents—and therefore, perhaps, her claim to societal support, calling into question the allocation of responsibility for dependency between state and family. I do not presume to have the answer to these questions, but no longer taking marriage for granted opens up our thinking to shape institutions to our real human needs.

Objects

'First-Class Objects' by James Grimmelmann in (2011) 9 Journal of Telecommunications and High Technology Law 421 asks

What is the difference between "James Grimmelmann" and "@grimmelm" and why should we care? Some computer systems, like Facebook and credit reporting agencies, are inherently "about" people. Others are not. This essay argues that the key technical difference is whether they use unique identifiers to refer to people in their databases. From this single distinction, a host of social and humanistic consequences follow. The essay taxonomizes them and teases out some of their implications for privacy law.

He goes on to state that -

How should we think about privacy in a digital age? One approach is to focus on how people use computers: how what we choose to share about ourselves changes when we go online. But we could also focus on how computers use people: how flows of personal information are transformed by technology. Just as email is different from mail, a spycam is different from a spy.

This brief essay will examine a seemingly technical question: how are people represented within computer systems? The essay will argue that that there are two possible ways to do it, and that the choice between them has important technical, social, and humanistic consequences. It won’t say much new about those consequences — instead, it will show how closely linked they are. ...

the transition from unstructured data to structured data is of critical importance for thinking about privacy and social interactions. There are echoes of at least three previous shifts in this transition: the introduction of print, the growth of bureaucracy, and the rise of digital media. All three of them have reworked the relationships of individuals to each other, and to the larger institutions that make up their worlds: communities, companies, and countries. The use of unique identifiers as the keys to structured databases about people will have its own dramatic consequences.

Another computer science term, this one from the field of programming languages, is suggestive of the values at stake. One sometimes says that a system which directly represents certain things treats them as “first-class objects.” One computing website explains that an element in a programming language is first-class “when there are no restrictions on how it can be created and used.”

For example, in some programming languages, like C, functions are not first-class. Any subcomputation that the program will carry out must be specified in advance by the programmer, and there are significant limits on how functions can be stored, modified, and passed around. In other programming languages, like Scheme, functions are first-class: the computer treats them just like it would any other kind of data, like a number or a binary true/false. This leads to great flexibility. Scheme programmers can add new functionality on the fly as the program runs; they can do clever things with functions that C programmers can only mimic imperfectly and at much greater length. It is easier to work with and reason about functions in Scheme than in C, because functions are first-class in Scheme and not in C.

People are first-class objects on Twitter: it has the capacity to distinguish and reason about them. The same is true in the many other systems that give people unique identifiers as a way of representing them in databases. Both halves of the phrase are illuminating. On the one hand, people are truly first-class: this representation enables useful features that connect directly to these individuals’ wants and needs. On the other, people are also objects: when these systems represent people, it is often without their knowledge or consent.

... treating people as first-class objects - representing them with digital identifiers - has significant technical and social consequences. Perhaps it should have legal consequences as well. We should expect the creators of these first-class objects to take care to treat people with the respect and concern the name suggests they deserve.

Capacity

Last year I noted D Borough Council v AB (Rev 1) [2011] EWHC 101 (COP), in which a UK High Court judge acting as the Court of Protection under the Mental Capacity Act 2005 banned a man with a "moderate learning disability" from having sex.

"'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex" (NYLS Legal Studies Research Paper No. 11/12 #26) by Michael Perlin comments that

Few questions of competency are as befuddling or as controversial as the question of a person’s competency to consent to sexual relations. Any consideration of this question necessarily implicates issues of law and clinical assessment, and analyses of this question are usually conflated with discussions of politics, social mores, and “morality.” This inquiry is further complicated by the fact that there is no unitary definition of “competence” in the law in general.

To seek to formulate even a tentative answer to this question, it is necessary to examine overlapping areas of civil and criminal law, including:

• definitions of “statutory rape,” including the use of dyadic “blanket” statutory categories of exclusion based on age, and the use of indeterminate (both statutory and caselaw-derived) categories of exclusion based on mental status

• the right of persons with mental disability to engage in consensual sexual relations in outpatient facilities, halfway houses, group homes, civil hospitals, forensic facilities, and

• the resolution of liability issues arising from tort suits alleging incompetence to consent (most frequently arising in cases in which the plaintiff alleges that an inebriated state robbed him or her of the power to consent).

Case examples illustrate critical issues involved in determining competency to consent to sexual relations in individuals involved in both criminal and civil matters including those diagnosed with intellectual disabilities. Specific emphasis is placed on utilizing assessment strategies that correctly identify cognitive, neuropsychological and psychiatric disorders that could influence competency.

This presentation considers these questions, seeks to identify the factors that must be considered in determining “sexual competence,” learns why this is such an underdiscussed area of discourse in the legal and behavioral communities, and assesses whether it is good law, mental health and/or policy to attempt to craft a unitary standard in this area of social behavior.

Lags

The Australian Bureau of Statistics reports on a 'Drop in defendants finalised by Australian courts' -

The Higher, Magistrates' and Children's courts of Australia all saw a decrease in finalised defendants in 2010-11, according to the Australian Bureau of Statistics (ABS).

The number of defendants finalised by Magistrates' courts has decreased for all states and territories except Tasmania and the Northern Territory. The largest decreases were seen in Victoria, Western Australia, Queensland and the Australian Capital Territory, with a decrease nationally of 12% in 2010-11. This is the largest decrease in the Magistrates' courts in the past 6 years.

There was a decrease of 12% for defendants finalised in the Children's courts from 2009-10, and a decrease of 3% in the Higher courts.

In the Magistrates' courts, traffic offences continued to be the most common offence type, accounting for 43% of defendants, followed by acts intended to cause injury (11%) and public order offences (8%). Those aged under 35 years accounted for over half of the defendants, with 79% of these being male.

For the Higher courts 53% of defendants were males aged under 35 years. In the Children's courts, 79% of defendants were male. The main offences were acts intended to cause injury (22%) and illicit drug offences (19%) in the Higher courts and theft (21%) and acts intended to cause injury (20%) in the Children's courts.

The ABS indicates that in 2010-11 there were 586,391 defendants finalised in Australia's criminal courts -

- 16,298 in the Higher Courts;
- 533,857 in the Magistrates' Courts; and
- 36,236 in the Children's Courts

Between 2009-10 and 2010-11, the number of defendants finalised across all criminal courts decreased by 11%, resulting from decreases in all three court levels. In 2010-11 the number of male defendants decreased by 12% (from 512,278 in 2009-10 to 452,491). The number of emale defendants decreased by 11% (from 139,610 in 2009-10 to 124,993).

Of those defendants adjudicated, 97% were proven guilty, of whom 11% (55,663) were sentenced to a custodial order, the same proportion as 2009-10. At the state and territory level, Queensland contributed the most to the defendant population with 28% (164,367), followed by New South Wales with 27% (155,630) and Western Australia with 17% (97,483). The proportions of defendants who were male ranged from 81% in South Australia to 75% in Western Australia.

Stigma

The National Centre for Vocational Education Research (NCVER) has released a 39 page study on Unfinished business: student perspectives on disclosure of mental illness and success in VET.

The Centre comments that -

To date there is very little local or international research that captures the voice of VET students with mental illness. Such research requires sensitive strategies to safeguard student vulnerability. We reflect on the strengths and challenges of research with vulnerable populations and discuss the issues, strategies and student responses relating to participation in the study.

Twenty VET students with a diagnosed mental illness and 20 VET staff from four institutes were recruited to the study. Students were enrolled in courses at certificate III or above. Only five of these students had disclosed their mental illness at the time of enrolment. Staff participants comprised 11 teaching staff and nine staff classified as access, disability or support workers.
In addition to interviews with students and staff, site-specific documentation relating to enrolment, disability supports, reasonable adjustments and other relevant information available in the public domain provided the data for analysis.

Students articulated the factors they believed contributed to successful course completion and progression as: regular attendance, timely submission of assessment tasks, receipt of constructive feedback from teaching staff and multiple opportunities to accept support with study. Students and staff agreed on the importance of being in the right course, having clear goals and support strategies in place outside VET. They also agreed on the need for clearer organisational processes relating to support services.

The place of disclosure of mental illness in course success and the linking of disclosure to study supports produced the greatest divergence of opinion — staff and students did not agree.

In discussing the student perspective on 'Enabling success' the report comments that -

Students identified self-reliance as central to course success and placed great emphasis on their own capacity to manage their mental illness in the VET environment. They were prepared to take full responsibility for their educational success or failure. Students wanted to blend in with other learners and not be identified as ‘the depressed guy’, with their illness dominating the perceptions held of them by peers and teachers. This meant that most students did not disclose their mental illness.

Staff indicated that they

also expected students to take responsibility for their academic performance, and for the vast majority this was evidenced by a student’s willingness to disclose their illness. They considered learner reluctance to request special attention or assistance as a disinclination to be responsible and to work with staff to ensure their educational success. For staff, the likelihood of success correlated strongly with disclosure.

Support mechanisms for VET students with a mental illness are based on disclosure and many previous studies have focused their recommendations on ways to maximise student disclosure. We found that this focus is problematic. Students usually do not disclose their illness at the outset for the following reasons: they want to be self-reliant and to protect their sense of self as a coping person; they fear stigma, prejudice and rejection; and they don’t consider an episode of psychosis or depression as a ‘disability’. But the risk is then that students are often too ill and too vulnerable to seek help when they need it the most. If, out of desperation they do disclose, support is not necessarily forthcoming or useful.

Meanwhile staff expect that students will disclose and use the disability services. However, many teaching staff work part-time and don’t have the time, skills or resources to manage students who disclose their mental illness.VET organisations have paid little attention to suitable organisational responses to students with mental illness and so are unable to deal effectively with disclosure when it occurs.

The report refers to the 'risky business of disclosure', commenting that -

When students spoke of the meaning and experience of disclosure in terms of course completion and progression, their language was peppered with concepts of risk, regret at past rejections and the need for reliance on self. Students in this study were very clear that the act of disclosure had consequences for their integrity and confidence. It was usually only when the risks associated with non-disclosure outweighed the inherent risks of disclosure that students declared their mental illness.

While staff acknowledged the risks inherent in disclosure and conceded that many students may have had negative experiences in the past, there seemed to be a fundamental belief that disclosure of a mental illness in their organisation would be the ‘right’ thing for the student. This belief was linked not only to the recognition that provision of study supports could be available upon disclosure, but also to the prevailing view that disclosure indicated a student’s acceptance of the presence of mental illness in their lives. For many staff, acceptance of the illness appeared to be linked to a willingness to seek support, thus demonstrating a commitment to academic success. There were however discernible differences in the views and experiences of teaching staff and specialist equity and disability staff. Teaching staff were less confident in the capacity of the organisation to respond effectively to disclosure of mental illness. Interestingly, all staff were adamant that they would not disclose a mental illness themselves.

It was clear that the kind of response a student received to the disclosure of a mental illness influenced whether the student sought and/or accepted study supports during the course. It was also evident that the response to the disclosure influenced students’ intentions vis-a-vis future decisions on disclosure. Of significance, only one student participant reported with any certainty that he would disclose in the future. The other 19 students explicitly stated they would prefer not to disclose infuture. Yet the organisational supports are structured in such a way that they can only be provided when students disclose their mental illness.

The report concludes that -

At the point of enrolment a VET student has the opportunity to disclose their mental illness and to request some assistance. Students reported that the absence of space in which to describe their condition, the location on the form where disability information is sought, the very use of the term ‘disability’ and the lack of clarity around information management did not encourage disclosure of mental illness. Students made an assumption that disclosure on the enrolment form would lead to some assistance being offered and enable teachers to be aware of their needs. This was not the case.

Staff acknowledged these concerns and suggested that the collection of disability information related more to the reporting requirements of VET organisations and their obligation to operate in accordance with the Disability Discrimination Act than it did to addressing student needs.

Analysis of the organisational documentation available to enrolled and enrolling students revealed a lack of clarity and transparency and suggested that organisational responses to students with mental illness have been given little attention. The key finding reported by students and supported by staff is that disclosure at enrolment usually leads nowhere.
Staff and students spoke of the need to close the gap between student expectations of support and the organisational capacity and intention to provide such services. Clear and transparent processes and the adoption of inclusive teaching practices were identified as central.

It recommends that -

 Information about, and the formal provision of, study supports and reasonable adjustments be available to all students, if needed, and not be predicated upon the disclosure of mental illness.
 Student attendance, accountability (timely submission of assessment tasks) and academic performance are monitored and offers of study assistance are made repeatedly and in a timely manner.
 Changes are made to the way institutes collect health/learning/disability information to ensure a transparent separation between the data collected for organisational reporting purposes and that designed to identify student needs for support.

Fake fashion

The Full Federal Court's decision in Facton Ltd v Rifai Fashions Pty Ltd [2012] FCAFC 9 (aka the G-Star Case) concerns the importation into Australia of infringing branded clothing. The judgment includes a useful discussion of damages for passing off and of additional damages under s 115 of the Copyright Act 1968 (Cth).

In Facton Ltd v Rifai Fashions Pty Ltd [2011] FCA 290 Bromberg J considered the Copyright Act 1968 (Cth), Fair Trading Act 1987 (NSW), Trade Marks Act 1990 (Cth) and Trade Practices Act 1974 (Cth), finding that the first and second respondents infringed the applicant's Trade Marks and Copyright Works, contravened ss 42 and 44 of the Fair Trading Act, contravened ss 52 and 53 of the Trade Practices Act, and engaged in conduct which constitutes the tort of passing off. They were ordered to pay costs and to pay damages of $20,213.

Rifai, an Australian clothing manufacturer and retailer, had purchased and offered for sale counterfeit GStar jeans, belts, handbags, t-shirts and other items (ie goods featuring unauthorised use of G-Star trade marks). Rifai had been alerted that the goods were counterfeits (for example in connection with seizure by the Australian Customs & Border Protection Service of a shipment from Thailand) and had made an undertaking to "cease from manufacturing, importing and selling infringing products". However it continued to sell the infringing goods, resulting in an Anton Piller order covering its premises.

Bromberg J referred to the articulation by Gordon J in Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2009] FCA 633 of principles for the award of damages under s 115(2) of the Copyright Act. He commented that -

Rifai Fashions and Mr Rifai admit that the applicants had established a substantial, exclusive and valuable reputation and goodwill in Australia by reference to the G-Star Trade Marks and the G Logos. They further conceded that the G-Star Trade Marks and G Logos are, and have been at all material times, known to be distinctive of and signify exclusively the business and goods of the applicants.

I would infer that, as the exclusive distributor of G-Star Products in Australia and given the evidence as to its very substantial turnover, G-Star Australia has a valuable reputation or goodwill which is, to a significant degree, generated by and reliant on the reputation of the “G-Star” brand. I would therefore agree that the value of the goodwill attached to the business of G-Star Australia will be affected by damage sustained to the “G-Star” brand, including because G-Star Australia:

Loses some sales of G-Star Products, because counterfeit products are available at cheaper prices; and 

Loses customers because some customers no longer purchase G-Star Products, as that apparel is no longer considered exclusive.

In relation to the loss suffered by G-Star International, the damage to reputation was pressed on the basis that, as the owner of the copyright in the G Logos, loss of reputation is manifested in the probable diminution in the value of the copyright as a chose in action. I accept that, as a chose in action, the G Logos are likely to hold significant value.

The basis upon which Facton claims damage by way of lost reputation was not identified, despite the claim that Rifai Fashions had damaged the reputation of each of the applicants.

The applicants jointly seek general damages to reputation in the amount of $100,000. The applicants made no attempt to distinguish between the goodwill or reputation held respectively by each. Nor was any attempt made, either by way of evidence or even submission, to identify the value of the reputation or goodwill concerned. The value of the reputation or goodwill held by each of the applicants is clearly a matter in relation to which evidence could have been called by each of the applicants. In the absence of that evidence, the Court is left to wholly speculate as to the value of the goodwill held by G-Star Australia and as to the commercial value of the G-Star Logos as a chose in action. If the Court had been provided with that evidenciary starting point, it may then have been possible to quantify, with some degree of speculation and guess work, the loss that may have been occasioned by reason of the infringing conduct. However, without evidence as to the value of the reputations concerned, I have no capacity to measure loss.

Whilst I accept that some degree of speculation and guess work may be appropriate in assessing the diminution of an asset by reason of infringing conduct, that task needs to be performed on the basis of a secure foundation. If the Court is left to do nothing but guess at the value of the intangible asset involved, the task of assessing the diminution in value of that asset becomes wholly speculative. In circumstances where the applicants could have adduced, but have failed to adduce, evidence to demonstrate the value of each of their goodwill or reputation, I am not prepared to wholly speculate as to that value. I have no basis from which to assess any diminution in that value resulting from the infringing conduct of Rifai Fashions and Mr Rifai. In those circumstances, I am not able to award damages for loss of reputation.

In discussing the application for exemplary damages, or alternatively additional damages under s 115(4) of the Copyright Act he went on to comment that -

I have no hesitation in finding that Mr Rifai’s conduct (and thus that of Rifai Fashions) was knowing and deliberate. It can be said that the continued selling of a small number of counterfeit goods after the giving of undertakings involved wilfulness. However, the conduct was not wanton, there was no malice or insolence or the like disclosed. Whilst there was conscious disregard for the applicants’ rights, that disregard was not both conscious and contumelious. This is not one of those rare occasions where an award of exemplary damages is appropriate.

In relation to additional damages the Court held that -

Where an infringement of copyright is established a court may, in assessing damages, award additional damages if it is satisfied that it is proper to do so having regard to the matters referred to in s 115(4)(b): Aristocrat at [40]. As Black CJ and Jacobson J said in Aristocrat at [43]: “the objectives of an award of additional damages include deterrence”, and “an element of penalty”. One of the purposes of an award of additional damages is to strip the infringer of the pecuniary benefits received from the infringement: Aristocrat at [44] and [48]. There is no need for any proportionality between the amount of compensatory damages awarded under s 115(2) and any additional damages ordered: Aristocrat at [45].

I am satisfied that it is proper to award additional damages. My satisfaction, in particular, is based upon the need to strip Rifai Fashions and Mr Rifai of the pecuniary benefit likely to have been obtained as a result of their infringement and also because of the need to punish and deter. There are however militating factors which, whilst not negating the need for an award of additional damages, significantly diminish the amount that might otherwise have been awarded.

Mr Rifai claimed that he had made less than $10,000 from selling G-Star branded counterfeit goods. No substantiation was given and because of my view that Mr Rifai tended to play down the level of his wrongdoing, it is likely that the profits made were significantly larger and in the order of twice the amount that was actually conceded. An award of damages totalling $20,000 would likely strip Rifai Fashions and Mr Rifai of all pecuniary benefits received by reason of their infringements. Given the amount of compensatory damages which I intend to award, that analysis suggests that a further sum of $11,000 be awarded by way of additional damages.

There are factors that militate against a larger award of additional damages. Firstly, because I intend to require the respondents to pay the applicants’ costs of this proceeding, there will be a substantial impost upon the respondents which will likely substantially exceed the damages awarded. Secondly, I take into account that a significant and costly lesson would have been learnt by Mr Rifai when the goods purchased in Bangkok were forfeited by Customs, at a cost of some $32,000. Thirdly, the need for deterrence is diminished by Mr Rifai’s acceptance of his wrongdoing and that of his company. Rifai Fashions admitted liability at a very early stage of the proceedings. Mr Rifai admitted that he was a joint tortfeasor when that allegation was first raised. Other appropriate admissions and concessions have been made and together with the cooperation shown, the apology given, and Mr Rifai’s candid acknowledgment of his foolishness, I have come to the view that any need for punishment or specific deterrence which remains is already addressed by the damages and costs orders that I intend to make. I have, in relation to deterrence and punishment, also taken into account Mr Rifai’s evidence as to the respondents’ poor financial position.

On appeal the Full Court ordered that

the first and second respondents pay the appellants’ damages in the sum of $14,213;

The first and second respondents pay the second appellant’s additional damages in the sum of $25,000.

The respondents pay the appellants’ costs of the appeal.

It stated that -

The appellants sought compensatory damages, including reputational damages and additional damages under s 115 of the Copyright Act. They also sought damages, including exemplary damages, in the tortious claim for passing off.

Although the tort of passing off is quite distinct from the statutory remedies that are given under the Copyright Act, in this case and often where a claim is made both in tort and under the Copyright Act, the same facts support both the tort and the statutory cause of action, and any damages which flow in respect of both causes of action.

Therefore, it seems that, and we do not understand the appellants to contend otherwise, if the appellants receive both compensatory damages and additional damages under s 115 of the Copyright Act, they should not receive any further damages, including exemplary damages, for the tort of passing off.

Because we think the appellants should receive an award of damages under s 115(2) and s 115(4), there is no need to consider further the tortious claim or the appellants’ claim for exemplary damages. It is only necessary to address the appellants’ claim under s 115 of the Copyright Act.

In a useful discussion for law students about damages as distinct from account of profits the Court commented that -

In this case it seems that the appellants advanced a case in which they sought both damages and an account of profits. They did so by claiming the profits made by the respondents as additional damages. That course was in our opinion impermissible, and led to the error made by the primary judge in awarding $11,000 by way of additional damages pursuant to s 115(4).

If the sum of $9,213 compensated the appellants for their loss or damage they were not entitled to the further sum of $11,000 on account of the respondents’ profits. It might be, and probably is the case, that the sum of $9,213 does not accurately reflect the damage suffered by the appellants. The real damage suffered by the appellants probably included the loss of the profits that the respondents made on the various counterfeit items: Colbeam Palmer Ltd v Stock Affiliates Pty Ltd at 32 per Windeyer J. However, there was a lack of clarity about the way in which the appellants put their case in relation to damages, and it is not possible to go behind the award of damages under s 115(2).

The judgment goes on -

The appellants also claim they are entitled to two other heads of damage under the Copyright Act. First, they claim they are entitled to reputational damages. Secondly, they claim they are entitled to additional damages under s 115(4) apart from those already awarded.

The primary judge declined to award the appellants reputational damages on the basis that they had not made out their case on the evidence because they should have identified the value of the appellants’ reputation as an “evidentiary starting point”.

An owner’s loss of reputation sounds in compensatory damages and may be awarded under s 115(2) of the Copyright Act if the evidence justifies such an award. Damages would flow if the owner establishes that the infringement has caused a depreciation in the copyright as a chose in action: Sutherland Publishing Co. Ltd v Caxton Publishing Co. Ltd [1936] Ch 323 at 336 per Lord Wright MR; Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2009] FCA 633; (2009) 81 IPR 378 at [31]- [34] per Gordon J. The evidence in this case did justify an award of reputational damages under s 115(2). On the primary judge’s own findings the appellants established a substantial, exclusive and valuable reputation in Australia in relation to their trademarks, brand and goods. He also found that the brand would be diminished by the sale of counterfeit items, and that customers would be lost because the goods are no longer considered exclusive.

However, his Honour declined to include in the award of compensatory damages a sum to reflect reputational damage because, as we have said, he found that the appellants had failed to adduce evidence to demonstrate the value of the goodwill or reputation, and in those circumstances he was not prepared to speculate as to that value.

We cannot agree with that conclusion because we cannot think of any further evidence that the appellants could have adduced in relation to the damage to their reputation.

It is not easy in any given case to establish a reputation and to identify in monetary terms the value of the loss of that reputation. However, in our opinion the appellants established the former, and the Court was obliged to consider the latter: Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; (1984) 4 FCR 450. In The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 at 83, Mason CJ and Dawson J said:

The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v. Schiffmann Menzies J. went so far as to say that the “assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation”. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reason of contingencies is not a reason for a court refusing to assess damages.

It is a matter of judgment as to the loss of value in a party’s reputation. Although at first blush we would have thought the damages would have been higher than that arrived at by Gilmour J, we do not disagree with his Honour’s award of $5,000.

In considering the additional damages Lander J and Gordon J stated that

The pecuniary benefits which flowed to the respondents in this case were relevant in assessing the additional damages which were to be awarded, but there were other factors to be taken into account, all of which have been referred to by Gilmour J, and all of which in our respectful opinion are relevant.

If the primary judge was of the opinion that a pecuniary benefit of $11,000 had accrued to the respondents or either of them, he was wrong in our respectful opinion to limit the additional damages to that amount. To do so meant that there was no recognition of punishment in the award and no element of punitive damages at all.

Lander J and Gordon J concluded that

We think the factors which have been identified by Gilmour J cause s 115(4) to be engaged in this case. We think the respondents acted in flagrant disregard of the appellants’ rights in infringing the copyright. We think the respondents’ breach of the respondents’ own undertakings demonstrates the flagrancy of that conduct. The respondents need to be deterred from similar conduct. There is a need for general deterrence to deter like-minded people who would act in the same way as the respondents and infringe other owners’ copyrights.

We think the respondents’ conduct after the proceeding was brought, and during the proceeding, ought to be taken into account, much like it would for an award of aggravated damages in a defamation case. It was only at the last minute that the respondents acknowledged their wrongful conduct, and they denied the infringement until that last minute.

The amount which ought to be awarded for exemplary damages is not easy to fix. The appellants sought an award of $500,000 at trial and $200,000 on appeal. We think both of these sums are significant overstatements of the award that ought to be made. Although there need not be any proportionality between the amount of compensatory damages awarded under s 115(2) and the amount of additional damages awarded under s 115(4) (Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd at 571 per Black CJ and Jacobson J), the sums sought by the appellants both at trial and on appeal are so disproportionate to the damage suffered that the claims must be rejected.

Because this aspect of the award is meant to act as a punishment, the individual circumstances of the respondents must be taken into account, and the award must be tailored to reflect those circumstances: Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542; (1992) 24 IPR 461 at 479 per Wilcox J.

... we do not think the sum of $11,000, which the primary judge ordered for additional damages, was in fact additional damages. However, because there is no cross appeal this Court cannot ignore that assessment, although the Court can take into account the fact that that sum is payable by the respondents in assessing the overall amount to be awarded under s 115(4).

In our opinion an appropriate award of additional damages under s 115(4) would be in the order of $25,000. Such an amount would reflect the purpose of s 115(4) and would include the figure of $11,000.

In the end, the total figure that we fix is only marginally higher than the figure Gilmour J would fix, but we have reached that conclusion for different reasons.