THE
AUSTRALIA
TIMES
®
LEGAL
Vol. 1 No. 2
June 2015
Rights, Society & Public Affairs
Independent Media Inspiring Minds
3
WHAT’S INSIDE
Legal
WRONGFUL CONVICTION:
A THING OF THE PAST, OR RELEVANT AS EVER?
6
The Law & Online Child Exploitation
22
Demand for Fairer Budget Reform and
International Aid Policy Continues
16
IPNO TLHICEE U BNRIUTETDAL SITTAYT ES: TOO
QUICK TO JUDGE?
12
An interview with
Diana Sayed
Amnesty International Australia
26
Independent Media Inspiring Minds
4
Contributors:
Editor:
Welcome Note
Welcome to TAT Legal. As an independent, grassroots, bi-monthly publication, TAT Legal aims to provide
a unique environment where all members of the community are able to benet from informative,
stimulating, and inspiring stories on current affairs and development in the ever-changing world of law.
Run by a diverse team of passionate and decorated writers, we invite you to join our mission of
empowering all Australians to develop critical legal awareness.
Contact Janus Santos to enquire about becoming a TAT Legal Contributor.
Hello readers! Welcome to our second TAT
Legal bi-monthly publication. In our most
collaborative issue to date, we focus on the
theme of ‘Rights, Society & Public Affairs’,
addressing issues such as the plight of
wrongfully convicted prisoners, and asylum
seekers in immigration detention centres
and issues with Australia’s continuing failure
to keep its obligations to foreign aid. I would
like to thank Ruby Wharton of VGen, Diana
Sayed of Amnesty International Australia,
Andrei-Schiller Chan of the Melbourne Sol
III Company, Rowena Baulch for designing
the front cover, the TAT team, and of
course you - our amazing readers for your
continuing support! Make sure to ‘LIKE’ us
on social media to keep up to date on all
news and publications:
https://facebook.com/TheAustraliaTimesLegal
Happy reading
Janus Santos
Editor’s Note
Ruby Wharton | Hannah Brown
Olivia Walker | Karla Brenner
Janus Santos | Jaime Carter-Maggs
Janus Santos | Karla Brenner
Subscribe
CommentHome
WHAT’S INSIDE
Legal
Editors Note ..................................................................... 4
Wrongful Conviction: a Thing of the Past, or
Relevant as Ever? ............................................................ 6
Police Brutality in the United States: Too Quick to
Judge? ............................................................................. 12
Demand for Fairer Budget Reform and
International Aid Policy Continues ....................... 16
The Law & Online Child Exploitation .................... 22
An interview with Diana Sayed - Amnesty
International Australia ............................................... 26
Independent Media Inspiring Minds
5
Legal
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by Janus Santos
Legal Theorist, William Blackstone once said,
“Better that ten guilty persons
escape than that one innocent suffer”.
The criminal justice system is built on the function of punishing those who
violate our laws and moral codes, and to ensure the safety and prosperity of
society. But what happens when prejudice and ignorance affects who we see
as ‘innocent’ or ‘guilty’?
The idea of innocent, law abiding men and women being betrayed by the very
system of justice we are asked to put our faith on is almost unfathomable.
Many cases of wrongful conviction are shared between Australia and the
United States, most of which are skewed by race, religion and politics – a
concept that should be long extinct in today’s modern culture. Factors such
as unfounded forensic science, false confessions, substandard lawyering, and
governmental misconduct also come into play.
TAT Legal
interviewed director, Andrei Schiller-Chan, shortly before the
opening night of
The Exonerated
- a visceral drama illuminating the true
stories of six survivors of death row and wrongful conviction, set in an era
of heightened African-American oppression and intolerance. The production
captured the spirit of the famed Rubin “Hurricane” Carter, and Schiller-
Chan’s close friend, David McCallum III, who was exonerated for kidnapping
and murder after serving twenty-nine years.
“Hopefully the play will raise
questions about mass incarceration, and rehabilitation too”
, said Schiller-
Chan in explaining his motivation behind the production.
WHO IS DAVID McCALLUM III?
David McCallum III served twenty-nine years in prison after being coerced
into a false confession for kidnapping and murder in 1985 when he was just
sixteen years old in the United States. Robbed of his youth and adulthood,
he was forty-ve years old when he was exonerated. Preceded by a lengthy
battle of requests for appeal, it was nally found that there was not a single
piece of evidence connecting McCallum to the crime.
In a 2014 interview with the Hufngton Post, following his release, McCallum’s
lawyer commented:
WRONGFUL CONVICTION:
A THING OF THE PAST, OR RELEVANT AS EVER?
“We have to try and remember what New York was like in 1985… crack, crime
was at high epidemic levels and people just didn’t care anymore whether
defendant’s were being treated fairly. The Police Department had so many
homicides to deal with on a regular basis… all they cared about was closing
cases, they didn’t care how they did it, or who they hurt in the process and
they didn’t care whether they were right”.
While some may argue that times may be different now, the story of David
McCallum III is living proof that public perception, the demand for prosecution
and discrimination affects the outcomes of justice.
Speaking about how we can learn from the miscarriage of justice in McCallum’s
case and its underlying implications on how human beings view one another,
Schiller-Chan said:
“Anywhere that the justice system is founded, or at least run by peoples
tendencies and pre-conceptions, and how another person looks, there’s
always going to be aws in the justice system…I think if you can look inside
yourself, and free yourself from judgment and tunnel vision prejudice – which
is the worst thing, which is why wrongful convictions happen, then I think you
can truly see the light in another human being”.
RUBIN “HURRICANE” CARTER
Perhaps if not equally tragic, but greater, was the similar case of American
middleweight boxer, Rubin “Hurricane Carter” who was twice convicted of
triple-homicide in both 1967 and 1976. He was later freed via a petition of
habeas corpus, after spending almost twenty years in prison with his friend,
John Artis, who was also African-American. On the night of a restaurant
shooting, Carter and Artis simply matched the description of the suspects
involved – “two Negros in a white car”.
In remembering the investigation of the incident, Artis said in a 2014 interview
with
Democracy Now!
that the police told him that if he was to confess and
point the crimes to Carter, then he would be released. In what can only be
described as a true act of bravery and loyalty, Artis refused, and was convicted
with Carter.
According to Australian human rights barrister, Geoffrey Robertson, on the
political surface of the case, it became a matter of honour to secure Carter
and Artis’ conviction. Convicted by an all-white jury, the state of New Jersey
devoted massive resources to the prosecution, claiming that the shooting
was a Black Power revenge killing.
Image By Michael Billings [Public domain], via Wikimedia Commons
WRONGFUL CONVICTION:
A THING OF THE PAST, OR RELEVANT AS EVER?
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Independent Media Inspiring Minds
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Media headlines singled out Carter to be a “murderer,” “assassin,” “criminal”
and “killer of white people.”
Indeed, in a time where racial bus segregation had only just been outlawed,
there was almost no way that an African-American man in 1967, with a
troubled childhood and a history, could argue his innocence.
But surely, haven’t these racist attitudes and narrow views of justice been
long abandoned, and no longer occur in contemporary society? The answer,
shameful.
WRONGFUL CONVICTION TODAY
Wrongful conviction in murder cases is especially worrying in the United
States, as thirty-one out of the fty states still allow capital punishment.
Although wrongful conviction trends are difcult to ascertain, according to
the National Registry of Exonerations in the United States, as of 2014, 1,374
people are listed as having been exonerated from charges since 1989.
As we’ve seen in the cases of McCallum and Carter, times of pressing demands
to combat crime affect how cases are approached.
Take the aftermath of the September 11, 2001 attacks as a modern example:
how many people did the American government detain at Guantánamo
Bay and held without charge for almost a decade? How many arrests were
made for immigration offences, or as material witnesses? How many Muslim
communities in the United States suspected of engaging in terrorism were
scrutinized?
Discussed in a 2011 article by the Supreme Court correspondent of The New
York Times, Adam Liptak, the mission of preventing terrorism before occurring
caused widespread early arrests, with prosecutors often relying on charges
that required little concrete evidence. Fundamental presumptions of the
legal system were reversed after the attacks. People detained on immigration
charges were seen as guilty until proven innocent and were often held for
months in deplorable conditions after they were ordered released.
How can this primitive and abhorrent ‘arrest early, convict broadly’ approach
that commenced just fourteen years ago, be seen as anything but a step back
into upholding civil rights and basic freedoms?
WRONGFUL CONVICTION IN AUSTRALIA
Wrongful conviction is far from an American-isolated issue. Since the late
Independent Media Inspiring Minds
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Legal
1950’s, there have been several high prole wrongful conviction cases in
Australia, including Graham Stafford, who was imprisoned for fourteen years,
and Lindy Chamberlain, the infamous mother who was convicted of murdering
her nine-week old infant in 1982 while camping at Uluru in Central Australia,
but maintained that a dingo had taken her from her tent. Chamberlain was
later acquitted, after spending more than three years in prison.
Chamberlain’s trial was criticized for being unprofessional and biased, and
often used as an example of how media sensationalism can adversely affect
a trial. Chamberlain, who was of the Seventh-day Adventist faith, was falsely
alleged to have sacriced her infant as part of a bizarre religious ceremony
of her church.
Unlike the United States, no such exoneration registry exists in Australia,
meaning that there is no complete list or indication of exactly how many
Australians have faced a similar fate as Stafford or Chamberlain. Furthermore,
while the hierarchy of the Australian court system provides a system of appeal,
there are no independent criminal case review bodies to investigate cases in
which there are claims of wrongful conviction, unlike England or Scotland.
Talking about the relevance of
The Exonerated
in Australia, Schiller-Chan said:
“(Carter) says things are denitely getting a lot better… but there’s always
something, there’s always some conict within humanity that creates prejudice
and racism and you know we’ve got it here in Australia. Very much so. The
Indigenous population in Australian prisons is fteen times higher than non-
Indigenous. Which is appalling”.
Schiller-Chan also sees the production as relatable to the context of refugees
and asylum-seekers in Australian immigration detention centres, described
by
Amnesty International
as a
“human rights catastrophe ... a toxic mix of
uncertainty, unlawful detention and inhumane conditions”.
AN IMMINENT NEED FOR CHANGE
Perhaps it is unreasonable to advocate for the application of law to be free
of bias, but this sadly seems to be a reoccurring pattern in cases of wrongful
conviction.
However, three obvious solutions to recognize the travesty of wrongful
conviction are:
1. Governments shifting the focus on rehabilitation, rather than incarceration,
given the current crisis of overcrowding in prisons in both the United States
and Australia. Addressing the New York-based organisation,
Liberation
Prison Yoga,
Schiller-Chan said:
“The best thing for prisoners is self-awareness and rehabilitation. By punishing
a person, and by locking them into a house of violence, where they constantly
have to keep an eye open over their shoulder, isn’t going to help anybody.
You’re not rehabilitating. All you’re doing is providing a number of beds to
equal x amount of dollars”.
2. Implementing a Criminal Cases Review Commission in Australia, as there is
no adequate process for an individual who is the victim of a gross miscarriage
of justice to challenge their conviction, as endorsed by the
Australian Lawyers
Alliance.
3. Ensuring that the ordinary rules of law are upheld, especially the presumption
of innocence and criminal convictions made beyond reasonable doubt, even
in times of war and heightened times of crime.
Failure to implement such change translates a society living in the past, and
repeating the cruelties of history. Both Australia and the United States, as
well all legal systems should recognize that wrongful convictions that remain
uncorrected is unacceptable. Wrongful conviction is as relevant as ever.
Action needs to be taken, as it is we who will suffer the consequences.
Carter at Bunker Hill Community College,
Boston in 2011
Image by Michael Borkson
David McCallum III was exonerated after
serving 29 years in prison
Image by MELBOURNE SOL III COMPANY
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Several thousand New Yorkers took to the streets in December 2014 to express outrage at
police for their role in the numerous deaths of unarmed African-American men and boys,
and at the judicial system for its history of exonerating police involved in these killings.
Image Attribution By Thomas Altfather Good (Own work)
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POLICE BRUTALITY
IN THE UNITED STATES:
TOO QUICK TO JUDGE?
by Olivia Walker
August 4
th
1964. The 36
th
president of the United States signed
The Civil Rights
Act
banning discrimination of race, colour, religion or national origin whist
simultaneously delegating powers to the federal government to begin phases of
desegregation. With the implementation of this act, brought African-American
pride and equality in America.
However, recent uprisings responding to unlawful shootings stemming from late
2013 have now, more than ever, issued a concern about rights equality of African
Americans and how they are viewed in the eyes of the law.
For time immemorial, there has been a great divide between citizens and the law.
When the people believe the law is just, there is no fault, but when the people
believe the law is acting in an unjust manner, the gap widens. For as long as there
is a gap, there are people trying to close it. As the current situations stands, the
African-American community are protesting to display their dismay. With each
wrongful death at the hands of the law, there is a larger public outcry for a full-
edged investigation into police powers and their motives.
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Many people have been killed, unlawfully pushing the boundaries of justice.
Protests of the masses and violet uprisings, these controversial deaths have caused
an outburst from the community. What once started in the small towns of the United
States has now grown to a national led campaign in some of the major cities of
America. Two of the more signicant cases leading to the Ferguson Unrest saw the
deaths of Freddie Grey and Michael Brown. Grey, 25, was admitted to hospital and
remained in a coma before his death. The police ocers were charged with his death
because of substantial injuries sustained to his neck and spine during his arrest.
Brown, who was committing a robbery unarmed, was shot dead by a police ocer
at the age of 18. These two cases alone have caused rebellion like no other.
The protests are less about the deaths of these citizens but rather, the racial proling
of police and the use of police force. The real unanswered question, involves the
injustice brought against these lost souls.
Though these protests may seem well justied in the eyes of society, what is lacking
is the evidential proof. There is a rather well known ideal regarding the media and
its ability to provide a distorted perception of reality. Police must work to protect
members of the community and this includes assessing situations of danger and
acting in the best interests of the citizens. Was there a great deal of injustice done to
these helpless victims, or were the police apprehended for acting within their line
of duty?
In the end, headings like
‘riots in the US’
are more valuable than
‘ocer does good
deed’
but this does raise the question as to whether there are key facts that are not
being shared that would alter our views on these protests. Can we really trust the
pages with an inky stain? Do they really provide us with the essentials that are needed
to come to an educated conclusion? Thus, we accept what the media provide us
with as being the truth, as do we let the systematic ways of the law work to unravel
what really took place during these cases.
Citizens’ cooperation and belief in the system of justice is what allows the cogs in
the mechanism of law to turn. Therefore, it is of the upmost importance that the law
creates justice but also maintains justice by bridging the gap where injustice may
occur. Racial proling has no place in this day and age. In the great words of Martin
Luther King “injustice anywhere is a threat to justice everywhere.”
Independent Media Inspiring Minds
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Demand for Fairer Budget Reform and International Aid Policy Continues
An article from VGen: World Vision Australia’s youth movement
by Ruby Wharton, National Communications Ocer
Protesting the latest Federal aid budget reform is tricky business. If you point to the
millions of lives that will profoundly suffer because of the slashing of aid, you risk being
labelled an economically illiterate bleeding heart, blinded to the apparently logical
rationale of the Federal Budget cost-cutting measures. What if you deal only in the facts
of the matter? The graphs that chart the plummet of our aid spending to its least generous
in recent history paint a similarly pitiful picture. Whether you deal in gures or faces,
the callous slashes to Australian Aid are a prime example of poor budget reform and
lamentable policy. It is devastating for those outside our borders who depend on its life-
saving legacy. Not only that, but it places Australia’s international economic and political
standing at risk, with damaging consequences for regional stability, future prosperity
and the fairness and generosity that have long been imprinted in our national DNA.
Naturally, the news of the most recent $1 billion cut to Australian Aid in the May Federal
budget has shattered NGOs across the country, as part of the projected $11 billion
occurring over this government term. The coalition Campaign For Australian Aid, which
boasts cross-sector support from NGO heavyweights such as Make Poverty History,
World Vision, Micah Foundation and Oxfam demands fairer and more generous budget
reform and international aid policy. VGen, as the youth advocacy arm of World Vision,
have been rigorously campaigning for a budget that is reective of the generous and
fair Australia we are proud to belong to. But the barrage of broken promises, lacklustre
compromises and downright failures certainly destabilises that national pride. From the
perspective of Australia’s future leaders and benefactors of our international reputation,
the problems with our government’s budget reform are multiple.
The Howard government’s promise to keep aid expenditure at 0.7 of GNI, a resolution
that marked our entry into the new millennium, was not enshrined in international
law and thus enforcement is difcult. But still, a promise remains a promise. Such a
commitment seems reasonable, at a 70c donation for every $100 an Australian makes,
or 3% of our gross national income. But this already turned into a shadowy compromise
with the 2013/14 decision to lower our domestic commitment to 0.5% of GNI. Not
quite the original deal, but at least a promise that seems responsive to the demand for
urgent action on global poverty and certainly an achievable gure for one of the world’s
richest countries. However, it was clearly not deliverable in the eyes of our leadership.
Successive governments have cut Australian aid six times in three years, equating to an
almost $20 billion reversion. The latest cut puts international aid expenditure at 0.2% of
GNI, one third of our international commitment and almost half of our revised domestic
commitment of 0.5%.
Independent Media Inspiring Minds
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So cold, hard gures aside, what will this mean to the true benefactors of the aid budget
reform? The world’s most vulnerable have not been graciously spared, but resolutely
targeted as sacricial lambs. World Vision CEO Tim Costello condemns the 70% cut to
Africa, the world’s poorest region and the effective end to Australia’s aid intervention
there. Whilst the government has attempted to protect the Pacic region, our closest
neighbours in South and East Asia are affected the most, with 60% of the one billion
savings coming from the Asia-Pacic bilateral program. Costello echoes the sentiments
of many, claiming that “It seems incredible that we should be willing to undermine the
stability and security of our own region, hitting the area of closest and most immediate
need and undermining our chances for future prosperity.”
It’s easy to forget the human lives behind the dollar signs, but our $1 billion cut equates
to making life or death decisions, to deciding between programs focused on education
or healthcare, child protection or maternal/infant health, domestic violence prevention or
sanitation; apples and oranges-style differentiation which no one should have to make.
VGen was quick to share the Campaign For Australian Aid ‘Is the Budget Fair?’ micro-
site, post-Budget night. This demysties what the aid cuts will mean for the world’s most
vulnerable. That $1 billion loss means that: 10, 000 children lost an education in Sudan,
8, 000 people lost access to HIV mitigation in India, 2, 000 children in Laos lost access to
schooling, 137, 000 Indian children lost the empowerment afforded by child protection
projects and 45, 000 children in Lebanon lost healthcare.
VGen with Greens MP, Adam Bandt
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That 21% of all major savings in the latest budget reforms came from aid cuts, is an
embarrassing admission when wealthy countries in comparatively weaker economic
positions are refusing to place aid on the cost-cutting chopping block. In the same week
the Australian government declared the reforms ‘modest’, the United Kingdom passing
a law to keep aid expenditure at 0.7%, despite having an income per person 50% lower
than Australia, with ve times the national debt. One has to question the rationale of
our leaders, when Australia’s international reputation, regional stability and economic
prosperity stand on precarious ground if we continue to cut aid-bolstered international
relationships at such alarming speed.
Whatever our government may say about budget decits and austerity drives, VGen,
and it’s formidable entourage of NGOs refuse to believe that our empathy as a nation
is similarly in decit. Australians are fair and generous people and our international aid
policy does not represent that.
VGen is a formidable tribe of young change-makers and social leaders who are tackling
issues of global poverty and inequality. Scattered through universities and schools
across the country, VGen is about disturbing the status quo, raising their voices to the
right people and disproving the apathy myth that surrounds youths. VGen’s campaigns
revolve around exposing the connection between child labour and our supply chain and
how we, as consumers can take it out of the equation, and campaigning for Australian
Aid. VGen’s results around Australian Aid are certainly a blueprint of their success. Over
the course of this year, hundreds of young people have been empowered to ‘interrupt’
VGenners are young people, aged 15 – 25, who are empowered to take action on issues of global
poverty and injustice. Joining together with a network of young people across Australia, we
speak out with one voice to advocate for those living in poverty. We inuence our world through
grassroots campaigning – one campus, classroom or community at a time.
Independent Media Inspiring Minds
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Joe Hockey as he penned the latest budget, calling for more generous policy reform for
international aid. Individuals have contacted their local MP’s in droves. Through simple
actions like meeting with prominent MPs such as Adam Bandt and Kelly O’Dwyer, VGen
has been able to discuss the impact of grassroots community support for Australian Aid,
the importance of aid literacy and showcasing the positive contributions Australian aid
makes annually. Meeting have been particularly productive with MPs agreeing to tweet
in support of Australian aid, share stories around its success and make a cross-party
motion around aid and child labour on World Day Against Child Labour. These are a few,
among many examples of how grassroots advocacy and campaigning can inuence the
evolution of government policy.
Amongst talks of political agendas, national debt, inaccessible acronyms of GNI and
GDP, economic rationalist policy and budgetary reform, we cannot forget what the
debate around aid boils down to. What is fair and just for a wealthy nation like ours, to
give to our neighbours in this global village. Isolationist ideals which see Australia as
separate from it’s global citizens, particularly those who are suffering from environmental
disasters or feeling the incessant attack of poverty, hunger and lack of education, do not
pay heed to the interconnectedness of our globe. And as young Australians who will one
day be charged with the responsibility of being leaders of this country, VGen believes
our policies on aid should reect that interconnectedness and realise that none of us can
truly progress if so many are kept stagnant.
Ruby Wharton is a Public Relations graduate from the University of Technology, Sydney
and the National Communications Ofcer for VGen. VGen are the dynamic, national
youth faction of World Vision Australia and support advocacy and the change-making
potential of young people. Keen to get involved?
Visit: http://www.vgen.org
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The Law &
Online Child
Exploitation
by Jaime Carter-Maggs
There are similarities and dierences in child exploitation, with respect to the crime of online
child pornography and its terrestrial (physical) counterpart. The development and expansion of
the Internet and how the digital age have changed the way crimes are committed and viewed
and how these changes have impacted on the way the law and law enforcement agencies
respond, nationally and internationally. Most concerning is the signicant impact on children
that these crimes have by further reinforcing negative stereotypes about harm, victim blaming
and what is actually perceived as criminal. However there have been several recommendations
in responding to child exploitation by examining strategies and/or actions that have been
considered previously.
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TERRESTRIAL VERSUS CYBER
Australian National University Fellow, Peter Grabosky argues
“virtual criminality is basically
the same as terrestrial crime”
meaning that the crimes committed are primarily acquainted.
Both types of crimes include motivation (i.e., lust, power, sexual gratication, revenge) from
the oender to access or procure victims or material; that transgress against societal norms.
The dierence here according to Grabosky is only the methods employed in committing these
oences, the Internet is a medium for committing classical acts of crime and violence. Terrestrial
crimes are those crimes that relate to traditionally recognised crimes such as child sex oences
including; sexual abuse; sexual assault, incest, indecent assault and rape.
The cybercrime equivalent to child sex oences include online child grooming and child
pornography websites. Child pornography has been dened as meaning, ‘lm, photography,
publication or computer game that describes or depicts a person is, or appears to be, a minor
engaging in sexual activity or depicted in an indecent sexual manner or context.’ (Crimes
Act 1958 (Vic), s.67A). Cybercrime according to the
Cybercrime Act 2001
(Cth) has a narrow
interpretation dealing oences against computer data and systems, or integral to committing
oence the oender has used a computer or ICT (Information and Communication Technology)
device.
Whilst it appears on the surface that there are similarities with both opportunity and motivation
behind the crimes there are also many dierences between terrestrial and cybercrimes involving
child pornography. According to
McConnell International
, there are four ways that cybercrimes
dier from terrestrial crimes. First and secondly, crimes are easier to commit and require few
resources compared to the damage and harm that can be incurred. Thirdly, cybercrimes do not
require the oender to be in a close proximity to the victim or even in the same jurisdiction and
nally not all cybercrimes are prohibited.
Computer related crime according to Grabosky, could be explained by the juxtaposition of
opportunity, motivation and the absence of capable guardianship. The opportunity to reproduce
and distribute child pornography can be done in the form of mass communication. Previously
the distribution and production of child pornography was taboo. It presented great risks,
which made it harder to produce and distribute sexually explicit material of children without
detection in a particular geographic location. Cybercrime have provided the opportunity for
predators to remain anonymous in their online transactions. The risk of committing cybercrime
of being caught is lower as opposed to a greater risk when terrestrial crimes are committed;
these crimes are not restricted by boundaries. The role of the Internet in the commission of
acts of physical interpersonal violence can be seen in online grooming of children to facilitate
meetings and sexual abuse.
Image by The Opte Project [CC BY 2.5 (http://creativecommons.org/licenses/by/2.5)], via Wikimedia Commons
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Cybercrimes overcome physical barriers making crimes easier to commit, replacing
physical crime with virtual assaults, virtual rape and virtual incest. This is enabled
through social networking, chat, communication, websites, email, instant messaging
and various chat rooms including ICQ, which makes child pornographic images,
materials and videos readily available to oenders. This opportunity facilitates access
to material that has signicant impacts on children and makes them targets of
opportunity.
This oensive material minimises deviant acts committed by normalising the
behaviour of the oender. Oenders are able to nd one another more easily and
exchange child pornography this creates a view that what they are doing is acceptable
and appropriate. Producing, viewing, exchanging such explicit and oensive material
mean those accessing child pornography are desensitised to the impact that it has
on their victims. Oenders do not see the psychological damage inicted upon child
victims, as they do not see themselves physically abusing the child. This technological
mediated violence ignores the harm inicted on child victims is not a consideration.
Child pornography is minimised and the impact on the victim is blurred by what
is seen as reality and what is fantasy. Not all acts will be considered illegal, rather
some deviant behaviour will not be illegal even though it is not collective socially
acceptable. In some jurisdictions digitally adjusting or ‘morphing’ photographs are
not seen as harmful as it does not require physical contact with the child. These
crimes or acts however challenge legal denitions and law enforcement agencies
when detecting and responding and prosecuting child pornography eectively.
CHALLENGES RESPONDING TO ONLINE CHILD EXPLOITATION
At present, there is little unity across borders in identifying; classifying and prosecuting
prohibited cybercrimes such as child pornography. Crimes recognised in one
jurisdiction are not seen as crimes in another, according to McConnell International.
Expanding geographic boundaries raises jurisdictional issues unless there is a
harmonic approach to addressing child pornography.
Child pornography requires substantial investigative tools and resources. Rapidly
changing technology means both the law and law enforcement agencies are often
left behind. Legal challenges arise when acts are committed that are not recognised
under the law to prosecute. Concepts and denitions do not adequately cover all the
behaviour that accompanies the behaviour that relates to new technologies. Terrestrial
crimes have clearly dened legal denitions that aord protection to the victim.
These denitions are not applied and do cover their virtual counterparts meaning
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legitimate victims are not recognised as they do not satisfy the legal requirements
necessary. Cybercrimes do not adequately t within those categories and require
laws of their own, especially as they can adapt rapidly to detection. A challenge for
law enforcement is the identication of victims. There is a dark gure of crime in
reporting child pornography. Reporting cybercrimes in particular are voluntary and
this does not always occur for various reasons including shame; guilt; victim blaming
practices, which place the focus on the victim’s behaviour rather than squarely on the
oender (U.N Commission on Crime Prevention and Criminal Justice, 2001; Chawki,
2005). The culture that exists in producing, disseminating such material takes place
in closed virtual communities. This secrecy shrouds the ability for law enforcement
to understand the extent of the crime itself. A legitimate attempt made to respond
to exploitative acts against children in the area of child pornography continues to be
challenging.
RESPONDING EFFECTIVELY
There needs to be more research into the extent and impact of child pornography.
Education is one integral factor in protecting child victims. Children must be educated
to protect themselves online especially if unsupervised. Harm reduction techniques
need to be implemented. However, this should not in any way take away from the
need to identify and prosecute oenders who take opportunities to access children
and are motivated by their own needs. In order to reduce crime we need to reduce the
opportunities that exist for it to happen in the rst place. In order to do this however
there must be an understanding of what motivates oenders. Further, there needs
to be appropriate denitions to cover cybercrimes and penalties that reect the
seriousness of such heinous crimes. Finally, there must be proactive measures taken
to identify risks, target oenders and protect victims.
The Internet provides a medium to oender’s committing these crimes. This further
enhances the risk to young people and the detection and prevention of combating
child exploitation. Whilst there have been some positive responses not all as shown
have been aective. A more unied approach and understanding of child exploitation
impact needs to be properly understood before changes can be appropriately
implemented.
NOTE: THE CONTENT OF THIS ARTICLE IS FOR INFORMATIVE PURPOSES ONLY AND
DOES NOT CONSTITUTE LEGAL ADVICE. CONTACT A QUALIFIED LEGAL PRACTITIONER
FOR ADVICE OR REPRESENTATION.
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An interview with
Diana Sayed - Amnesty International Australia
by Karla Brenner
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Diana Sayed is the Amnesty International Australia (AIA) Human Rights Crisis Response
Campaigns Coordinator. Prior to working with AIA, Diana undertook programmatic work
with Human Rights First in Washington, D.C., as a Human Rights Advocate and Pennoyer
Fellow, following experience as a Legal/ Program Associate. Previously, Diana worked with
the United Nations High Commissioner for Refugees in the Legal Unit as a solicitor and
migration agent for refugees and asylum seekers in relation to statelessness. Diana holds a
B.A, LL.B. from the University of Western Australia and an LL.M (International Human Rights
Law)(Distinction) from Georgetown University in Washington D.C. Diana is an expert on
areas of International human rights law, the death penalty, Egypt, Bahrain and refugees.
• Diana, what spurs Amnesty International, as a global organisation, to advocate for human
rights?
It goes back to our history and where we started, as our foundation as a human rights organisation
was to speak out against the detention of prisoners of conscience. We aim to give a voice to those
who are voiceless, which is what our founder envisioned when Amnesty International started. Now
we have over seven million supporters all over the world. We’re continually advocating for countries
to be better on human rights.
• How does your role as Crisis Response Coordinator sit within the overall work of AIA?
We [Amnesty International Australia] work within the global movement. However, we cater our
campaigns to an Australian supporter base. This is largely decided by our crisis response project
team as what individual cases or more global campaign will resonate here in Australia and what
impact we can make in our region as a leader on human rights. My role is to respond to these
human rights crises and determine how we can mobilise supporters. A lot of our campaigns cater
to this supporter base.
• As a Crisis specialist what key indicators do you look for in identifying and categorising
breaches of human rights?
We monitor media reports quite closely and impetus often comes from our supporters locally as to
what campaigns they would like us to work on. We also respond to directives from the International
Secretariat on global crisis situations. This is where we see we have leverage and a voice to offer in
advocating on global campaigns.
• AIA states that the Crisis campaigns have a ‘focus… on human rights in Asia Pacic’.
What level of emphasis is placed on regional concerns – for example the death penalty in
Indonesia – as opposed to broader global crises – such as the campaign for the charges
against Al Jazeera journalists in Egypt to be dropped?
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Basically, both those responses involved Australian citizens. There is an emphasis on Australian
citizens to respond to these crises but this is not our only consideration. We will assess how
we can impact positive human rights change when we are making our assessment. Following
our history we have a long-standing role to play in campaigning to abolish the death penalty
around the world with individual cases and prisoners of conscience, which generally target
lawyers, journalists, and citizen bloggers. The natural impetus comes from supporters who
want us to advocate on these cases as well as our expertise and success to date.
• How are the methods of advocacy determined for specic campaigns?
The Amnesty International Parliamentary Group, which is a bipartisan group who we work
closely with, often are our rst port of call when we are advocating on cases and campaigns.
We also lobby local government groups who have the ability to be allies on specic issues.
This occurs through our supporters in electorates all over Australia engaging with their local
MPs and diaspora communities who are able to campaign to certain MPs on human rights
issues.
• What campaigns do you believe resonate most effectively within Australia?
It’s a hard question. It’s usually about how compelling it is, how well it resonates, and how
much our supporters feel like they can make an impact when they take action. It centres on
when people feel like they can make a difference. We work towards making people feel like
they can make positive human rights change and empower them will providing the right
campaigning tools to achieve that.
• Do you believe that Australians have developed a level of fatigue or indifference
towards specic human rights abuses as a result of the prevalence of discourse
around these issues in the media?
If I did feel like that I wouldn’t be doing that I’m doing. It moves in ebbs and ows. When it’s
something like refugees and asylum seekers, which has been an ongoing issue for the last
decade, there is a level of fatigue. Though often something more imminent and pressing can
gain momentum. It’s difcult to gauge. We must persist in the face of adversity and agitate
for change irrespective of the politicking of the day and hold the frontline as human rights
defenders.
• What advice would you give to people who wish to enter the advocacy eld?
I would advise them to go overseas, to go on research missions to developing countries to
understand how people are demanding dignity and civil liberties around the world. It is also
important to join human rights organisations like Amnesty International, as well as reading
and signing online petitions. A good entry point to participate at a local level is through
student Amnesty groups
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