Response to Vanessa Deverson On 'Child Abuse And Neglect: Mandatory Reporting And The Legal Profession'

This comment responds to Vanessa Deverson’s article titled ‘Child Abuse and Neglect: Mandatory Reporting and the Legal Profession’ and examines whether it is desirable for lawyers to be required to report child abuse and neglect that may be revealed by their clients. The comment begins by articulating the role of the legal profession, and explains how it differs from other professions. Part I explains that an obligation to report child abuse would fundamentally change the role of the legal profession in defending or asserting the rights, liberties and liabilities of their clients. Part II argues that even if mandatory reporting were to be brought in, it would be unlikely achieve its intended purpose because it would create suspicion towards the legal profession and undermine its role. The final Part discusses current South Australian draft legislation aimed at protecting children and argues that this may be a more appropriate route. The comment concludes that current Northern Territory reporting laws do not belong in a legal system that depends on clients having confidence in their lawyers.

Child Abuse And Neglect: Mandatory Reporting and the Legal Profession

Child abuse and neglect affects approximately 42 500 children in Australia each year. Parliaments in all Australian states and territories have introduced mandatory reporting into child protection legislation to protect vulnerable children by requiring certain individuals to report suspicions of abuse or neglect. However, lawyers are prevented from reporting because of the rules governing legal professional privilege and confidentiality. This article begins by examining the problem of child abuse and neglect in Australia and outlines the current legislative framework of mandatory reporting laws in Part II. Part III discusses the current rules governing lawyers and examines legal professional privilege and the duty of confidentiality. Part IV provides arguments for and against requiring lawyers to report suspected abuse and also considers the lawyer-client relationship and the special position of domestic violence victims. Part V offers recommendations for the proposed legislative reform. This article concludes that lawyers should be required to report child abuse and neglect.

Henry Responds To Dickson: ‘Revenge Porn’: A Victim Focused Response

This comment responds to Alyse Dickson’s article in this volume titled ‘Revenge Porn: A Victim Focused Response’. It summarises the difficulty that Australian law has encountered in keeping up with evolving behaviours with emergent digital technologies and provides recommendations for achieving the ‘victim focused response’ that Dickson argues for in her article. The comment begins in Part I by highlighting the problems caused by the term ‘revenge pornography’. Part II explores possible directions for future research and stresses the need for an interdisciplinary approach for any strategy to be truly effective. The comment concludes by arguing that a formal legal response in the form of criminal legislation in all jurisdictions should be implemented.

‘Setting The Boundaries Of Acceptable Behaviour’? South Australia's Latest Legislative Response To Revenge Pornography

The complex contemporary issue of revenge pornography has attracted extensive media, law reform and academic commentary and concern, especially as to the perceived failures of both the civil and criminal law to keep up to date with social and technological changes and to adequately respond to this issue. This article considers the existing remedies under the criminal law to revenge pornography and examines the Summary Offences (Filming and Sexting Offences) Amendment Act 2016 (SA) that came into operation on 28 October 2016. The new Act updates and strengthens the criminal law in South Australia in this area. This article notes that the criminal law is not the exclusive means to address revenge pornography and that there is a need for a wider approach that includes effective civil legal remedies and education and cultural change. However, the criminal law still has a vital role to play in setting the boundaries of acceptable modern behaviour. In this light, it is argued that the new South Australian Act is a timely and welcome legislative addition in addressing revenge pornography.

Why Lawyers Should Not Be Mandated Reporters Of Child Abuse

This article comments on Vanessa Deverson’s article in this volume entitled ‘Child Abuse and Neglect: Mandatory Reporting and the Legal Profession’ which argues that lawyers should be mandated to report suspected child abuse and neglect. It argues that lawyers should not be required to report suspicions of child abuse or neglect. Part I offers a reflection on Deverson’s argument and Part II offers guidance on how lawyers should proceed in a responsible and ethical manner when confronted with child abuse and neglect.

Mandatory Notification of Child Abuse and Neglect: Perspectives From Psychology

This comment responds to the primary article by Vanessa Deverson in this volume by giving some insights into the problem of mandatory reporting from the perspective of psychology. Parts I and II provide a survey of the legal and ethical requirements imposed on psychologists to report suspected child abuse and neglect. The article then moves on in Part III to discuss the way that psychologists balance the need to maintain client confidentiality with their duties to report. The article argues that lawyers should have the option to report child abuse and neglect, but warns that, before any reporting of child abuse and neglect can be successful, a vast improvement in the management of notifications is essential.

'Revenge Porn': A Victim Focused Response

This article argues that the Australian Parliament should provide victims of revenge pornography with a victim focused response to enable the fast removal of intimate images from the internet and to mitigate the harm that the ongoing public access to the images can cause. Part I outlines the reasons why revenge pornography has created a new problem for the law. Part II addresses the existing legal remedies and Part III outlines the different approaches that the Australian Parliament could plausibly adopt. It argues that while criminal laws and civil remedies may assist, they do not provide efficient remedies for victims. The article concludes that the Australian Parliament should extend the powers of the Children’s e-Safety Commissioner to deal with adult victims as well as child victims and thereby facilitate the fast removal of revenge pornography from the internet.

Allowances For Breaching Fiduciaries To Ensure That The Principal Who Seeks Equity Must Do Equity: Why Not Quantum Meruit?

This article considers the potential application of unjust enrichment on a quantum meruit basis to the assessment of allowances for breaching fiduciaries. It briefly outlines the jurisprudential basis for these allowances and then explores the role of unjust enrichment in awarding relief to a breaching party to a contract. Although such a party has breached the contract, quantum meruit operates to ensure that they are fairly compensated for work done or effort expended. The article argues that there are substantial similarities between the position of the party who has breached a contract and that of the breaching fiduciary. It is therefore useful to explain the potential application of quantum meruit to the assessment of allowances for breaching fiduciaries to ensure that the principal who seeks equity must do equity.

What Shall We Do With The Dishonest Fiduciary? The Unpredictability Of Allowances For Work And Skill

Fiduciaries who breach their obligations by making a profit may apply to the courts for an allowance for the work and skill that generated the profit, but it is unclear whether a court will indulge the application if the fiduciary’s breach was tainted with dishonesty. There are two different approaches available to the courts when faced with a dishonest fiduciary applying for an allowance. Courts that choose the first approach will rely on Boardman v Phipps and award an allowance that reflects the fiduciary’s conduct. Courts that follow the second approach will ignore the fiduciary’s dishonesty by relying on Warman International Ltd v Dwyer, and will award an allowance to prevent the principal’s unjust enrichment. The availability of the two different approaches has resulted in inconsistent outcomes and confusion in the law. This article explores the justifications for adopting each of the available approaches whenever a dishonest fiduciary applies for an allowance. Part I outlines the progression of the case law since Boardman v Phipps. Part II describes the rationales for adopting each of the approaches to awarding allowances to dishonest fiduciaries. It concludes that the conduct-based approach in Boardman v Phipps should be rejected, and that the unjust enrichment-based approach provided by Warman International Ltd v Dwyer should be adopted by the courts when awarding allowances to defaulting fiduciaries.

The Limits of Criminal Law And Justice ‘Revenge Porn’ Criminalisation, Hybrid Responses, And The Ideal Victim

This comment is a response to Alyse Dickson’s article in this volume entitled ‘Revenge Porn: A Victim Focused Response’. Part I considers the challenges that ‘revenge pornography’ raises and considers the difficulties of controlling aberrant sexualised conduct in circumstances where modern technology provides an almost limitless capacity to capture and distribute private images. Part II looks at the wider socio-cultural context, the gendered and sexualised assumptions of hetero-normativity and warns of the risks of overlooking ‘hidden’ individuals or groups that do not align with normative discourses of the ideal victim.