Justice & Expert testimony
Case Study K: Aboriginal discrimination
Article 1: Associated Press. (2007, June 21). Australian PM to Aborigines: No porn, alcohol. Fox News.com. Available from
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CANBERRA, Australia â€” Australia's prime minister announced plans Thursday to ban pornography and alcohol
for Aborigines in northern areas and tighten control over their welfare benefits to fight child sex abuse among
Some Aboriginal leaders rejected the plan as paternalistic and said the measures were discriminatory and would violate
the civil rights of the country's original inhabitants. But others applauded the initiative and recommended extending the
welfare restrictions to Aborigines in other parts of the country.
Prime Minister John Howard was responding to a report last week that found sexual abuse of children to be rampant in
indigenous communities in the Northern Territory. The report said the abuse was fueled by endemic alcohol abuse,
unemployment, poverty and other factors causing a breakdown in traditional society.
"This is a national emergency," Howard told Parliament. "We're dealing with a group of young Australians for whom the
concept of childhood innocence has never been present."
Howard announced the measures for the Northern Territory, an Outback region where the federal government retains
powers it doesn't have over Australia's six states. He urged state leaders to apply similar tough rules in their jurisdictions.
The federal government can change laws in the territory with an act of Parliament, where Howard has a majority that
ensures he can implement his policy.
Australia is home to about 400,000 Aborigines. About 60,000 live in the Northern Territory, often in isolated, impoverished
communities where jobs are scarce and substance abuse is widespread. The land was returned to them over the past 30
years and accounts for about half the Northern Territory, which is about twice the size of Texas.
The plan angered some Aboriginal leaders, who said it was the kind of government behavior that has disenfranchised
Aborigines and created the problems in the first place. They also complained they had not been consulted; the
government had not previously indicated it was considering such action.
"I'm absolutely disgusted by this patronizing government control," said Mitch, a member of a government board helping
Aborigines who were taken from their parents under past assimilation laws who uses one name. "And tying drinking with
welfare payments is just disgusting."
"If they're going to do that, they're going to have to do that with every single person in Australia, not just black people,"
Howard said the sale, possession and transportation of alcohol would be banned for six months on the Aboriginal-owned
land, after which the policy would be reviewed. The child abuse report found drinking was a key factor in the collapse of
Aboriginal culture, contributing to neglect of children and creating opportunities for pedophiles.
Hardcore pornography also would be banned, and publicly funded computers would be audited to ensure that they had
not downloaded such images. The report said pornography was rife in Aboriginal communities and that children often
were exposed to it.
Under Howard's plan, new restrictions would be placed on welfare payments for Aborigines living on the land to prevent
the money from being spent on alcohol and gambling. Parents would be required to spend at least half their welfare on
essentials such as food, and payments also would be linked to a child's school attendance.
Howard also called on state governments to send police to the Northern Territory to address a shortage on Aboriginal land
there and offered to pay their expenses.
The child abuse report was commissioned by the Northern Territory government and is widely regarded as credible
although it attracted some critics. It was unable to quantify the extent of the sexual abuse problem, since anecdotal
evidence suggested much of it went unreported.
Conducted by an indigenous health worker and a government lawyer, it found children had been sexually abused in all 45
remote communities visited. The abusers were both Aborigines and non-Aborigines operating in or near their
The report made 97 recommendations, including boosting procedures for reporting and monitoring offenders, and
addressing widespread poverty and alcoholism.
Australia's original inhabitants suffer far higher rates of poverty and substance abuse than the rest of the country's 21
million people, and their life expectancy is 17 years shorter.
For years, white men were banned from marrying Aboriginal woman, and mixed-race children were taken from their
Aboriginal mothers to be assimilated into mainstream society.
Though many found employment in the cattle and sheep industries, they were paid less than whites, sometimes working
just for rations. Unable to achieve economic independence, many have become welfare dependent.
Article 2: Jonas, W. (2003). Restricting Indigenous access to alcohol: Benefit or racial discrimination? NSW Alcohol Summit Report.
Retrieved July 11, 2011 from http://www.hreoc.gov.au/racial_discrimination/reports/alocoholSubmission.htm
The federal Racial Discrimination Act
This submission discusses the application of the federal Racial Discrimination Act 1975 to the restriction of alcohol sales
for the benefit of Indigenous people.
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General prohibition of discrimination based on race
The federal Racial Discrimination Act 1975 (RDA) makes racial discrimination unlawful in Australia. Discrimination occurs
when human rights are impaired by a restriction based on race (section 9).
Of particular relevance to alcohol restrictions are RDA sections 11 and 13. Section 11 makes it unlawful to refuse access
to a place that the public is entitled or allowed to enter or use, or to impose less favourable conditions on access, because
of a person's race, colour, descent, ethnic origin or national origin. Section 13 makes it unlawful to refuse to provide goods
or services, or to provide them on less favourable terms, to anyone because of that person's race etc.
Example of a discriminatory alcohol restriction: Refusal of service by a publican to Aboriginal customers where their
ethnicity is one reason for refusal will amount to direct race discrimination contrary to the RDA unless the refusal amounts
to a 'special measure' as defined in the Act and discussed in detail below.
Case Study L: Expert testimony
Article 1: Pragnell, C. & Hayward-Brown, H. (In press). Sir Roy Meadow.
Recent developments in the U.K. have alerted the wider community to miscarriages of justice in child abuse allegations
such as MSBP, SIDS, SBS and multiple filicide. Judgements including R v Cannings1, R v Clark and R v Patel, in
tandem with serious parental complaints, have resulted in investigations by the British General Medical Council (BGMC)
of Sir Roy Meadow and Professor David Southall, who have been major proponents of these child abuse theories in
several countries for the last two decades. On August 6, 2004, Southall was found guilty of serious professional
misconduct and was suspended from child protection work for three years. Governmental and parliamentary responses in
the UK have included reviews of civil and criminal cases and acknowledgment of the need for changes in child protection
proceedings, expert testimony and paediatric autopsy.
Child abuse may occur in the medical context or be identified by medical professionals who are statutorily required to
report their concerns and to make a notification of suspected child abuse to authorities. A balanced perspective demands
consideration of the trajectory which has culminated in false and highly questionable allegations. General practitioners,
social service workers and courts have deferred, unquestioningly, to the â€˜expertiseâ€™ of medical specialists who are
proponents in the abovementioned contexts. Resources, which could have been directed at children who are at risk of
harm from their parents, have been misdirected in pursuit of inherently flawed allegations. In order to make valid
assessments, medical practitioners need to be alerted to the manner in which these errors may occur.
It has been claimed by Craft and Hall that paediatricians in the U.K. are now reluctant to engage in child protection work
as a result of recent levels of complaints to medical disciplinary bodies by parents and by severely critical reports in the
media. However, these developments have occurred because there are real and serious difficulties in validity and
procedure in allegations such as MSBP, SBS and multiple filicide. These allegations carry an inherent assumption of
guilt, with authorities placing focus on the risk of harm to children by their parents, whilst negating or underestimating the
alternative risk of wrongful removal of children or the incarceration of a parent.
Recent developments in the UK cannot be ignored in Australia. Whilst some parents may harm their children in the
medical context, it is necessary to protect innocent families from the serious harm of wrongful accusations. The wrongful
removal of a child from his/her family, or the wrongful incarceration of a mother, is â€˜abhorrent in a civilised societyâ€™.
Miscarriages of justice need to be avoided by safe and rigorous practices of child protection, where assumption of guilt is
not the first port of call. Stringent adherence by Courts to the need for factual evidence with carefully limited weighting of
the opinions and suppositions of experts is required.
Article 2: Hirsch, A. (June 21, 2006). Why good lawyers become overzealous prosecutors. Los Angeles Times. Available from
BY ALL APPEARANCES, the sexual assault case against three members of the Duke University lacrosse team involves
serious prosecutorial misjudgment, if not downright misconduct.
Michael B. Nifong, the Durham County, N.C., prosecutor, made public accusations long before the conclusion of the
investigation and now forges ahead even as DNA, witness statements, medical reports and other evidence lead impartial
observers to find the case ridiculously weak.
Sadly, such conduct is not uncommon. Prosecutors blatantly or subtly overstep professional bounds all too frequently. In a
2003 study, the Center for Public Integrity found that, since 1970, trial and appellate courts cited prosecutorial misconduct
as a factor when dismissing charges, reversing convictions or reducing sentences in more than 2,000 cases. In thousands
more, courts labeled prosecutorial behavior inappropriate but upheld convictions nevertheless.
The New York-based Innocence Project, whose DNA testing has led to the exoneration of 180 wrongly convicted people
in the last 15 years, has studied these cases. It cites the following prosecutorial abuses as contributing to the punishment
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of the innocent: suppression of information favorable to the defense, knowing use of false testimony, improper closing
arguments, coerced witnesses, false statements to the jury and fabrication of evidence.
Maybe such shenanigans will seem unsurprising â€” just a case of lawyers being lawyers. As the joke goes, what's the
difference between lawyers and liars? The pronunciation. (I can make the joke. I'm a lawyer.) But prosecutors are
supposed to be different. They are public servants who are supposed to be committed to justice rather than the singleminded
pursuit of victory. The Supreme Court has referred to their "twofold aim": to ensure that "guilt shall not escape or
Why is the second half of that command often neglected? Why do some prosecutors seem indifferent to the risk that their
behavior will result in punishment of the innocent? The answer to these questions involves a combination of at least three
First, the asymmetry of the criminal justice system arguably places unrealistic demands on prosecutors. Defense
attorneys may pursue acquittals without regard for truth and are subject to few ethical constraints. For example, defense
attorneys generally are not bound to share evidence unfavorable to their client, but a prosecutor's failure to share
exculpatory material is a serious no-no likely to result in a conviction being reversed. Prosecutors understandably aren't
fond of unequal combat. With trials structured as zero-sum competitions featuring a clear winner and loser, they resist
allowing their opponent overwhelming tactical advantage.
Personal ambition compounds competitive instincts. Many prosecutors are elected. They wish to be re-elected and often
aspire to higher office. One rarely wins popular acclaim for the indictment not brought (because of doubts as to guilt or
because evidence was illegally obtained) or the case lost (because of appropriate restraint). Professionalism in
prosecution can be subtle and unpublicized, whereas wins and losses are out there for everyone to see. Moreover,
restraint is easily mistaken for weakness, rashness for strength. Today, Nifong receives criticism for prosecuting the
lacrosse players, but at the time he charged ahead with the decision, public pressure pushed toward aggressive action.
Another cause of prosecutorial misconduct is the deep-seated human need to rationalize away our errors. It would be
awfully difficult now for Nifong to admit â€” to himself â€” that he shouldn't have brought charges. He retains the discretion
to drop the charges, but it would amount to an admission that he has shattered the lives of several innocent people. Who
among us is capable of acknowledging mistakes of such magnitude?
The role of rationalization is on clearest display after DNA exonerates those already convicted. The occasional brave
prosecutor will apologize and take action to release the man he or his office wrongly put behind bars, but more often the
prosecutor refuses to admit the obvious. Though he routinely argues to juries about the infallibility of DNA evidence, now
he isn't so sure. Or, though he advanced a theory about the defendant's guilt with certainty, he now abandons that theory
while nevertheless maintaining the belief in guilt.
Consider the case of Earl Washington, a mentally retarded man convicted of rape and murder in Virginia who never
should have been prosecuted. The case against him consisted of a wildly inaccurate confession, whose errors included
misidentifying the race of the victim. Some time after Washington's conviction, DNA testing ruled him out as the source of
the seminal fluid found in the victim. The prosecution merely changed its theory of the case, arguing that Washington was
not the rapist but an accomplice. They stuck to that story (supported by zero evidence) even after Washington received a
pardon and even though no neutral observer has found his guilt a realistic possibility.
Prosecutorial misconduct should not surprise us. Prosecutors are lawyers (intent on victory), politicians (craving
popularity) and human beings (needing to rationalize serious errors). The question is what medicine can be prescribed to
treat the malignant influences on their behavior. The solution begins with the right kind of public pressure. We must judge
prosecutors by much more than how many headlines and convictions they muster.