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Walker, Gayann --- "Editorial: Seen and now very much heard" [2014] PrecedentAULA 40; (2014) 124 Precedent 2


SEEN AND NOW VERY MUCH HEARD

By Gayann Walker

Welcome to the children and the law edition of Precedent!

We are living in a unique period of Australia’s history, with institutions’ treatment of children over decades under close scrutiny by the Royal Commission into Institutional Responses to Child Sexual Abuse. The findings, research and hearings conducted by the Royal Commission have, to date, shone a spotlight on one of the ugliest aspects of human nature. I’m sure that I am not alone in feeling outrage at the stories that have emerged.

What is particularly striking is the resilience of the victims. For individuals to have the courage to step forward and share such horrific experiences is deeply humbling. Without their courage and determination, the government, and indeed the public, would never know the extent of the atrocities committed within our own communities. They have also become the voice of their peers.

As lawyers advocating for social justice, I hope that we are able to show the same courage in applying the findings from the Royal Commission, and in calling for the necessary legislative change to ensure greater justice for survivors and their families.

One recommendation I hope will eventuate is the lengthening or abolition of the limitations period for individuals who were abused at the very hands of those who were meant to care for them. This issue, while addressed to some degree in other states, is still a massive hurdle for victims attempting to access justice in Western Australia.

Another recommendation that I wholeheartedly support is positive change in the way that jurisdictions compensate victims of crime. Victims in Western Australia have not received an increase in over ten years.

Over the next 12 months and beyond, Precedent will continue to cover the activities and findings of the Royal Commission, including its final recommendations and report.

For now, we have compiled an impressive collection of articles from around the country tackling a broad range of issues.

In this edition, Dr Andrew Morrison SC addresses the Ellis defence, and how the Catholic Church has managed, thus far, to evade liability.

Several articles will assist you in your day-to-day practice. The articles on liability of schools; the heightened duty of drivers in school zones; and a national review of medical errors, limitation periods and children are particularly practitioner-focused. Once negligence has been established, the article on assessing loss of earning capacity of children is an excellent resource to draw on when compiling your client’s damages.

A further three articles provide practical considerations in representing children, including ensuring that their voice is heard appropriately in legal proceedings. The articles specifically address ways of ensuring that children are looked after in family law proceedings; provide advice as regards interviewing techniques to avoid re-traumatising child clients; and describe standardised best practice when representing children.

On the criminal law side, we investigate the over-representation of Aboriginal youths in custody and some innovative concepts to address this problem. The models proposed in the article, including diversionary programs, family group conferencing, intensive case management and Aboriginal Courts deserve robust debate.

Claire O’Connor SC’s article on children in immigration detention is also a challenging and confronting read, highlighting the human rights abuses suffered by children in detention and the fact that this cruelty is being committed in our name.

The issue of choice is also central to the case notes contained in this edition, which investigate whether children are legally competent to make decisions for themselves with respect to undergoing gender-altering medical procedures.

It has been both thought-provoking and highly rewarding to be involved in putting this edition together and I am confident you will find many valuable insights to take away from it.

Gayann Walker is a lawyer in the US and WA with 12 years’ experience in litigating personal injuries. She practises at Dwyer Durack in Perth, WA, and is a member of the Precedent editorial committee. EMAIL gwalker@dwyerdurack.com.au.


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