Tuesday 12 November 2013

The Hon Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse

Frank was born in Southern Europe. His parents were poor. They were devout members of the Catholic Church. When Frank was about 8 years old his parents were approached by the local Catholic priest who encouraged them to send Frank to Australia to be educated. The promise was of secondary education in a Catholic institution followed by an opportunity to study at University. Frank’s parents were told that, if they gave him this opportunity, he would have a much more satisfying life in Australia than he could hope for in Southern Europe. Frank’s parents were reluctant to see him go and Frank himself resisted the suggestion. Ultimately, Frank’s mother decided that the opportunity should not be allowed to pass and it was decided that Frank would come to Australia.

Before Frank left Southern Europe his parents were required to provide him with a new wardrobe. Basic clothing was acquired and put in a new suitcase. Frank was then sent off with his new clothes to board the ship for the journey. Frank never saw the suitcase or his clothes again.

As you can imagine, when Frank arrived in Australia he was frightened and traumatised by the separation from his parents. He was sent to live in an institution on a rural property in Western Australia. After a few days, when Frank realised he had not attended school, he asked the Brothers when he would join a classroom. He was told that the classrooms were full and that, instead of going to school, Frank would be put to work on the property. Frank never went to school. The life skills that he acquired were acquired by working in the dairy and in and about the property.

Frank – not his real name – came to the Royal Commission in Perth. He told two Commissioners of the sexual abuse he suffered at the hands of the Catholic Brothers who ran the institution. He says that sexual abuse was accompanied by constant and quite extraordinary levels of physical abuse. The children were belted with straps with metal objects in them. They were punished for minor transgressions by isolation and deprivation of basic sustenance. Their lives were completely miserable.

After Frank had been on the property for a few years there was a visit from a government official from his home country who came to check on the welfare of the boys who had come to Australia. Frank reports that the children were gathered together in the dining hall and speeches were made. A glowing picture was given by the Brothers of the opportunities which the boys had been given. They were, as you would expect, required to agree. Sadly, as Frank tells the story, the truth was otherwise.

After the meeting with all the children the government official asked to see Frank alone. They met and Frank was told that his father had recently died. The official also told Frank that his mother was very concerned about his wellbeing. She had not heard from him. Frank was mystified. He had been writing a letter to his mother every week but none had been received. Frank was also distressed because he had only received one letter from his mother in all the time he had been in Australia. He reported his distress. The official was surprised because he had understood that Frank’s mother had also been writing to him every week. The official asked Frank what the conditions in the home were like. Frank told him the truth, disclosing the sexual and physical abuse and suffering which all of the children were experiencing. The official returned to Southern Europe and, after a time, the child migration program came to an end.

Frank continued living on the property and when he was old enough was hired out to local property owners. He received a tiny portion of the remuneration appropriate for his labour. As soon as he was old enough, he left the home and went to work in the mines where he saved up enough money to visit his home country.

When he arrived back home he found that his mother had suffered a stroke. As a result, she was not able to give him a hug. Believing that Frank had received an education and was on a path to academic success in his new country, his mother was curious about Frank’s life. He had no choice but to lie. He did not want his mother to know that the decision she had made to send Frank to Australia had gone so horribly wrong. Because he was not able to sustain the lie, Frank returned to Australia where he has lived the rest of his life. Without even a basic education Frank’s life has been confined to working as a labourer and driving machinery in the mines.

Although his experience occurred 50 years ago, until he decided to talk to the Royal Commission, Frank had not been able to tell any of his family what had happened to him. He disclosed to his children only 2 weeks before coming to the Commission. He was only able to tell his wife of his childhood experiences the night before he came to talk with us.

The former Prime Minister Julia Gillard announced that she would recommend the establishment of a Royal Commission into Institutional Responses “to instances and allegations of child sexual abuse in Australia” on 12 November 2012 – exactly one year ago. At the time she said that “the allegations that have come to light recently about child sexual abuse have been heartbreaking. These are insidious, evil acts to which no child should be subject.”

Shortly before the former Prime Minister made that announcement, the then leader of the opposition and now of course the Prime Minister, Tony Abbott – anticipating that the Government might be about to announce a Royal Commission – said that for “a long period there was insufficient awareness and insufficient vigilance when it came to predatory behaviour by people in positions of authority over children. A lot of terrible things have been done, and a lot of people have suffered deeply.” Mr Abbot went on to indicate that “if the Government were to propose a Royal Commission to investigate the sexual abuse of children, it is something the Coalition would be prepared to support.”

Both the Government and the Opposition of the day acknowledged that the issue of the sexual abuse of children in institutions required a Royal Commission which would not be limited to the examination of any one institution “but must look at all organisations where there is evidence of sexual abuse.”

As Ms Gillard made plain, the decision to appoint a Royal Commission reflected a growing awareness in government and the general community of the widespread and at times systematic sexual abuse of children within institutions. Over the past three decades there have been many inquiries in Australia which have touched upon or been concerned with the sexual abuse of children. Various inquiries have looked at diverse issues including institutional care, foster care, child migration, the child protection system in some of the states and territories as well as issues in Indigenous communities. I am advised that there have been more than 300 inquiries, of which at least 80 have looked at issues directly relevant to the Commission’s work. That number may not surprise many in this audience but it speaks to the size of the problem and the difficulty the community has found in confronting and dealing with these issues. And, of course, there are many more reports from inquiries into these issues which have been conducted overseas.

As part of the Royal Commission’s research work we have set about gathering all of the previous Australian reports. We will endeavour to identify the good and bad amongst the recommendations they made, and – with the assistance of the bodies charged with implementing them – to evaluate their effectiveness.

When Prime Minister Gillard announced the appointment of myself and the other Commissioners in January this year she said that “for too many the trauma of (their) abuse has been compounded by the sense that they have had that their nation doesn’t understand or doesn’t care about what they suffered.” The former Prime Minister, speaking to the survivors of sexual abuse and on behalf of the Australian people, said “we are able to say we want your voices to be heard. Even if you felt for all of your life that no-one’s listened to you, that no-one has taken you seriously, that no one has really cared, the Royal Commission is an opportunity for your voice to be heard.”

To facilitate the work of the Royal Commission the Government decided and the parliament accepted that the Royal Commissions Act should be amended. Before its amendment, the Act provided for the conventional processes of a Royal Commission including the gathering of evidence at public and private hearings. These procedures are formal with the expectation that a Royal Commission will do most of its work in public. However, the Act did not provide any mechanism for receiving people’s accounts of their individual experience in a manner which met the Prime Minister’s expectations. For those reasons, with the support of all parties, the Royal Commissions Act was amended to provide a process to be known as private sessions. A private session allows a person who may have suffered abuse, or someone who was aware of the abuse of another (commonly a family member) to come to the Commission and talk to one or two Commissioners, to tell their story, have it recorded, and its acceptance acknowledged. I have previously referred to this as the obligation, which all of the Commissioners accept, to bear witness on behalf of the nation to the sexual abuse of individuals in institutions. The information which the Commission receives in a private session may be published provided it is relevantly de-identified.

When the Commission began its work we were careful to take advice about the procedure we should follow for private sessions. It was clear that we would have to ensure that there was adequate support for victims who came to tell us their story. But it was also necessary to take steps to protect the health of the Commissioners and staff. The processes which we have followed have been refined as our work has progressed. I am satisfied that they are effective and, in so far as we are able, will operate to protect the health of all who are involved.

From the time that the Royal Commission was first able to receive telephone calls in April this year until 7 November we have received 6,362 phone calls and 2,775 written and email enquiries. We have now received 627 written personal stories. As at the end of last week we have conducted 742 private sessions. From the enquiries we have received, we have 524 people waiting to be allocated a private session. There are a further 1,300 people who have called or written to the Royal Commission, of whom we anticipate fifty percent will attend a private session. We continue to receive phone calls at a rate which generates about 10 private sessions each day. As I have moved around the country speaking to various organisations I have learned that there are still many people who will wish to engage with the Commission but for various reasons have not yet made contact. I have no idea how many people ultimately will want to come to a private session and tell us their story.

Private sessions have now been conducted on many occasions in each of the capital cities. Commissioners are continuously moving around the country. Each of the stories is recorded and analysed for the information which it provides. Many of them will be reported in a de-identified way. From some we will gather information which will enable further in-depth inquiry leading to the examination of an institution at a public hearing. Each week I also refer matters raised in a private session to the relevant police force. Some of that information will result in investigation and prosecution of perpetrators. Other information will be added to the intelligence which the police constantly gather about various criminal activities. Frank told us his story in a private session. Many others are contributing to our understanding of the nature of the problems and tell us where institutions have failed and how they can do better.

Robert, not his real name, is a man who left school less than 20 years ago. I have not met him but I have met his parents who are both professional people. They provided a loving and caring environment for their children.

Determined that all of their children should have the greatest opportunity in life they enrolled Robert in one of Australia’s prestigious Christian private schools. They sought out such a school where scholastic achievement would be expected, Christian principles would be embraced, and a strong moral foundation would be provided for the children.

Robert was an engaging and talented child who was good at almost every activity. Learning tasks came easily. He excelled in sport, and stood out in music and drama. He was quickly recognised as an exceptional child. His talents developed as he made his way into high school where he won academic prizes and was destined for recognition as a leader for the school in his final year.

His results in Year 11 did not quite match the apparent promise. Despite continuing to engage in many school activities, his behaviour at home was changing. At first his parents thought that he was merely experiencing the retreat into himself which often occurs in teenage boys. The deterioration in his academic work continued in Year 12 and his behaviour at home caused increasing concern. He was often late home and stayed at school until well into the evening. He told his parents that he and other boys would commonly visit the homes of staff members after school for afternoon tea and, on more than one occasion, Robert asked whether he could stay the night at a particular teacher’s house. That request was declined but his parents became increasingly concerned. Shortly after he left school Robert, under intense questioning from his parents, disclosed the sexual contact which he had with that male teacher.

The consequences for Robert have been profound. Notwithstanding all of his natural abilities Robert’s life spiralled out of control. He became an alcoholic and an abuser of analgesics. With a confused sexual identity he was unable to establish any stable or long term relationships. He has been unable to work, now has no friends and wants little contact with family. His mother describes the experience as a living bereavement. The suffering for all involved is beyond adequate description.

The primary task of the Royal Commission is to listen to the personal stories of sexual abuse and, with the help of the knowledge from people such as yourselves at this conference and many others, draw from those stories the lessons which we can report to the Australian community in an endeavour to ensure so far as possible the abuse of children in institutions never happens again. There are obvious lessons to be learned both by parents and schools from Robert’s story. Parents need to be aware of the signs that something more significant than a child “growing up” is occurring. They need to be aware that if they have concerns about the behaviour of their child or the routine of the school they can take them to the school and openly discuss them. Just as important are the lessons which schools may learn. There must be rules for teachers’ interactions with children. We must provide a school environment which can prevent tragedies such as has occurred with Robert and his family.

I mentioned earlier that there have been a number of inquiries in relation to similar issues in other parts of the world. Taking various forms, the abuse of children has been examined in Ireland, Belgium, South Africa, Germany and the United States of America. Some inquiries have been conducted using the telephone to receive people’s stories and others have used standardised interviews. The Royal Commission’s experience confirms that the parliament was correct to follow the private session path. Although a traumatic experience for many, I have no doubt from the follow up work which is being done by the Commission that a private session allows a person to tell their story in a secure environment and in a way which allows them to talk to a person with some authority about the deeply traumatic, and for many, life defining, experience which they suffered as a child. It is not uncommon for men of my age to break down and weep when describing the trauma of their childhood. For some it is the first time they have been able to tell anyone of their personal story.

Apart from suffering sexual abuse, for those who lived in residential care – often referred to as an orphanage or home, whether run by a church organisation or by a government agency – it is common for them to report not only sexual abuse but extraordinary levels of physical violence and psychological trauma. Recounting memories of their childhood often 30 or 40 years ago brings forward a variety of traumatic memories.

Private sessions are one of the processes which the Commission is following to carry out the work required of us under the Terms of Reference. We will also conduct public hearings generally involving an in-depth examination of a particular institution. We also have a significant research program and will engage in extensive community consultation. A number of Issues Papers have been and will continue to be published.

It will be apparent to this audience, and it is confirmed by the range of institutions reported to us in private sessions as being implicated in incidents of abuse, that it would be impossible for the Commission to hold public hearings to investigate activities in every institution where allegations of sexual abuse are made. The reach of those allegations, both in time and in the range of institutions, is so great that to afford procedural fairness to parties and make responsible findings in respect of them would be impossible. For that reason the Commissioners have determined that we must be selective.

Although there are some institutions which by reason of well-known problems we must examine there will be others where abuse is reported, but having regard to our resources, both of people and time, we will be unable to look at. When selecting particular institutions to be examined in public hearings we will endeavour to identify those where there may have been the most significant problems and ensure that an appropriate range of institutions are represented. By reporting in a de-identified manner many of the personal stories from private sessions together with the various matters discussed in public hearings I hope we can give effective voice to those who were abused and provide guidance as to how institutions should be managed in the future.

As you may be aware we have now completed the evidence in 2 public hearings. We have looked at part of the Scouts; at an organisation with responsibility for the foster care of Indigenous children; and at the after school care operations of the YMCA. Next week we will commence a hearing into the children’s home at Grafton which involves the Anglican Church. In December we will commence a hearing in which we look at the Towards Healing program of the Catholic Church. There is a list which is constantly being considered and revised which contains many other possible public hearings which we will conduct as we move forward in our work.

Some comparisons with the work of other inquiries may give you an idea of the size of the task of this Royal Commission. Now that the Commission is fully operational, when there are no public hearings we are able generally to conduct about 70 private sessions in a week. The Ryan Inquiry in Ireland (which suffered delays because of litigation brought by the Catholic Church) extended over 9 years and 1,090 victims were interviewed. The inquiry in Belgium spoke to 124 victims. The German inquiry, which confined its interviews to telephone calls, spoke to 4,570 victims. The German inquiry also looked at familial abuse which is outside our terms of reference.

The Royal Commission has been asked to provide an authoritative account of the problems of sexual abuse of children in institutions wherever it has occurred. To this end we have developed strategies which will enable us to speak to people in remote locations. The Commission has officers charged with ensuring that Aboriginal and Torres Strait Islander people are aware of and take advantage of the opportunity to come and tell us their stories. We are also developing programs by which people in custody and those with mental health issues or disabilities can talk to us. Apart from these special groups, along with the other Commissioners I have spoken to many groups and organisations about the work of the Commission and explained how we are going about our work. Many people who have been sexually abused as children have suffered such significant trauma that they may never be able to come and talk to us. However, we are doing whatever we can to facilitate their engagement with the Commission.

We are aware of the significant interest in the Commission’s work including the public hearings. For that reason we have made arrangements to provide access to the hearing room through a webcast on the Royal Commission’s website. Although from time to time we may have to interrupt the proceedings to protect a person’s identity, so far as possible the public hearings will be accessible to everyone who has access to the internet.

The third major component of the Commission’s work is our research program. To assist us in carrying out that program we have engaged Associate Professor Leah Bromfield from the University of South Australia. Various projects have been identified and will be developed. For most projects we will engage outside researchers to carry out the work.

Our Terms of Reference require us to identify findings and recommendations which may lead to changes in laws, policies, practices and systems to better protect against and respond to the sexual abuse of children in an institutional context. Our research will be directed towards these ends. Apart from the formalised research program we will publish Issues Papers from to time which will be directed towards particular topics and invite submissions from anyone whether a professional or lay person with an interest in that issue. Our learning in relation to various of these matters will be developed through public forums, discussions and consultations with people with experience and knowledge in the various fields.

As I have previously indicated we are aware of the large body of work that has already been undertaken in this field. This conference is testimony to the efforts which have already been made by many people to address these problems. However, in providing the Royal Commission, the government has acknowledged the need to address these problems in a comprehensive and authoritative way. The Commissioners accept this challenge.

The Terms of Reference also require us to look at the provision of justice for victims of sexual abuse. This will require us to look at the civil and criminal processes relevant to the abuse of children. There are many issues to consider, not the least of which is the practical impact of the statute of limitations on a person’s right to sue and the identity of the appropriate defendant in a civil action. It is common that a person abused as a child will not report until they are an adult. The conventional limitation period is believed by many to work a significant injustice. Identifying the proper defendant is at the centre of the issues in the Ellis case when he sued the Catholic Church. An issue which we must address, but which I accept is complex and difficult, is whether there should be some form of general redress or compensation scheme. Some states have looked at this question, at least in relation to state institutions, and a national scheme has been provided in Ireland.

In the criminal area we will look at the structure of offences relating to the sexual abuse of children in the states and territories, the evidence gathering and trial processes, and the sentencing regime and patterns of sentencing for these offences around Australia. These are each significant topics which, if we are to meet the expectation in the Terms of Reference, will require research and consultation across broad sections of the Australian community including government, institutions and individuals with knowledge in these areas.

We have now released 4 Issues Papers: Working with Children Checks; the Catholic Church Towards Healing Process; Child Safe Institutions; and Preventing the Sexual Abuse of Children in out of home care.

Eighty submissions have been received in response to the first Issues Paper on Working with Children Checks. These have come from community organisations, government, business, academic and research institutions, and many individuals. Some common views expressed in the submissions include:

  1. The need for national consistency in the operation of the Working with Children Check;
  2. The need for more research to determine what elements of existing schemes are most effective; and
  3. The need to consider the Working with Children Check as only one element in a broader framework for protecting children.

These topics will be further explored in public forums.

The second Issues Paper on Towards Healing has attracted 48 submissions so far which include 30 submissions relating to personal experiences and 18 institutional or academic submissions. A submission was provided by the Catholic Church’s Truth, Justice and Healing Council.

The third Issues Paper on Child Safe Institutions has attracted more than 50 submission. They have come from organisations which provide advocacy and support for survivors of child sexual abuse, religious institutions, government agencies and individuals. A recurring theme in these submissions is the need for nationwide accountability, monitoring and oversight of organisations with responsibility for children. The submissions also strongly support the establishment of a clear statement of the requirements for a child safe institution. Many submissions identified the need to consult with children to properly understand what would make them feel safe and comfortable in reporting abuse.

The fourth Issues Paper on prevention of abuse in out-of-home care has just closed and I do not presently have information about the submissions.

Likely future Issues Papers may include:

  • Reportable conduct schemes for employees;
  • Obligations to report to police and to child welfare authorities allegations of child sexual abuse;
  • Aspects of civil claims procedures relevant to survivors of child sexual abuse;
  • Support needs for survivors and their families; and
  • Offender programs.

There will be others.

Submissions in relation to Issues Papers are placed on our website unless confidentiality is required or the Commission believes that its publication would be unfair to some person or institution. The Commission welcomes all submissions to Issues Papers. Furthermore I encourage anyone of you who may believe that a particular topic should be examined to write to the Commission and share your thoughts.

It is a difficult task to establish a Royal Commission. It requires those responsible for it, before they have a proper understanding of all of the issues, to try and identify the likely need for staff and premises and at the same time devise and plan the methodology to be adopted. The Commission now has 160 staff. This was initially believed to be sufficient. However, as we have refined our processes and come to a better understanding of the issues involved I believe that in order to carry out our work in a reasonable time frame the Commission’s staff needs to grow by up to another 100. Many of these people are required to enhance our public hearing capacity. Although an initial public hearing was conducted with all 6 Commissioners I anticipate that going forward no more than 3 will sit for most public hearings. This will maximise Commissioner capacity for hearings. However, each of those hearings requires a great deal of intense preparation by lawyers and other staff involved in investigation and analysis.

Apart from the staff required it is necessary for a Royal Commission to provide premises with technology to enable the Commission to do its work. The technology must meet significant challenges. For example, the Commission served one notice to provide relevant documents on one Catholic diocese. The response was 100,000 documents which require recording and analysis. The technical and analytical skills to allow this to occur cannot be underestimated.

In the course of developing the Commission’s capacity we have created a call centre and triage process to receive and manage the large volume of telephone calls we receive from people who wish to tell us their story. We have also developed effective processes to manage and analyse the information we receive.

Our investigation procedures are complex. In many cases the information we receive relates to allegations of events which occurred many years ago. Institutions have changed and some have ceased to exist. Where it exists documentary material is almost always in paper form and may not be properly catalogued or easily retrieved. Our experience is that institutions are keen to cooperate with us but the practical difficulties mean that the production of documents can often be delayed.

The Royal Commission is required to provide an interim report to government by 30 June next year. This report will discuss the work of the Commission to that date and endeavour to map out the future course of our work. At that time we have been asked to identify the likely time frame to complete our task. Although an interim report is required next year the Commissioners propose that, as we complete various case studies and reach conclusions, make findings and where possible recommendations, we will provide a report to government as soon as it is finalised. In this way we do what we can to be fair to those who have an interest in these issues and in particular people who may be criticised in a report, and allow institutions to respond at an early date to problems which we identify. It is possible that problems in one type of institution may also be present in other similar institutions.

As all of you are aware, tragically children continue to experience sexual abuse during their growing years. Apart from the abuse which occurs in a domestic setting the potential for problems occurs across all of the institutions where children are placed in the care of adults. When in residential care children appear to be particularly vulnerable, but abuse is not limited or confined to those settings. It is plain that many in the community do not understand the potential for abuse to occur, the frequency with which it does occur, and the consequences for the victim and their families.

It is the task of the Royal Commission to provide that understanding and with the assistance of those with knowledge in the various fields to provide findings and recommendations which will make our institutions safe for our children.