Saturday 5 July 2014

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

Keynote address

Thank you for inviting me to join with you to celebrate the 14th anniversary of the Care Leavers Australia Network.

When we first started our work the Commissioners decided that it was essential that we meet with representatives of the various organisations which support survivors. This proved to be a wise decision. CLAN and the others who work to help survivors of sexual abuse have provided us with assistance in a variety of ways. They have been important in building trust in our processes and encouraging people to come forward to tell their story to the Commission.

As all of you who have come together today appreciate, when a person suffers sexual abuse as a child the impact can be devastating. For some those impacts last for the whole of their lives. Many suffer from an inability to form effective personal relationships. In some cases their education is compromised, often catastrophically. They can find themselves isolated, impoverished and seriously disabled. The initially bright, achieving, energetic ten year old may be befriended and made to feel special by a person with teaching or pastoral responsibility who then abuses them. A life full of promise and expectation may be fundamentally compromised. The innate qualities of a happy child can make them the target for the evil deeds of an abuser.

As you know many people who have suffered abuse have great difficulty in talking of their experience until well into their adult lives. Some will exhibit the adverse consequences of the abuse at an early age. For others those consequences may not be apparent, at least to others, until later in their lives. All who have been abused need the support and advocacy of organisations like CLAN. I appreciate that not everyone who is a member of CLAN has experienced sexual abuse. But for many of them their childhood experiences have brought disadvantage and suffering.

The Royal Commission was created after some years of public discussion and increasing controversy surrounding the sexual abuse of children. Why it was that the pressure for the inquiry finally proved irresistible in this century rather than previously is not clear. A senior member of the Roman Catholic Church recently acknowledged when giving evidence to the Commission that, although our direct knowledge of abuse and the institutions in which it has occurred must be limited to the lifetimes of those who are still alive, there is no reason to assume that abuse is a phenomenon confined to the period after World War II. Indeed, from what we are learning such a view would properly be described as naïve.

We have been told in evidence on more than one occasion that there was a view in the Roman Catholic Church, at least in the 20th century, that the sexual assault of children by touching and other inappropriate physical acts, short of penetration, was a “moral failure” but not a crime. This raises questions of contemporary significance. Apart from the problem of defining moral failure, why did such a view, which is out of step with the community values reflected in the criminal law, emerge? Furthermore, if, as appears likely, that view was common in the Roman Catholic Church, was it a view held more generally in the community? If it was, why was it not challenged in previous generations? Providing answers to these questions requires consideration of the value structure in our society in earlier generations. The answers may provide valuable lessons for contemporary institutions.

It is not uncommon to hear people talk of the events which the Royal Commission has been asked to consider as confined to the past. They are often described as “historical”, the implication being that they are not of contemporary relevance. It is true that many of the allegations that have been brought to us relate to events which occurred more than 20 years ago. Many are more recent. However, it is important to understand that when a person is abused as a child it is most likely that they will not be able to talk about it for at least a period of 20 years, in some cases significantly longer. Only this week a man aged 84 came to a private session and related a story of very significant abuse which he suffered as a child. He told the Commissioner who talked with him that he had never previously told anyone that he had been abused. Many others have given a similar account.

This week we learned of the verdict of the jury in relation to Rolf Harris. Newspaper reports suggest that as a consequence of the publicity and the jury’s verdict more victims have come forward. This is not surprising. It is becoming apparent as we do our work that as the issue of abuse is raised and talked about survivors increasingly feel able to bring their own story to the authorities. That which may have been kept secret for years may now be told. The burden of guilt and shame which many have felt is lifted by knowing that others who have suffered have overcome their reticence. It becomes legitimate to talk openly of their childhood experience.

Rolf Harris is 84 years of age. The trial judge is reported to have said that his crimes require a custodial sentence. Although many of his victims were abused decades ago, the appropriate contemporary response of the criminal justice system, which must acknowledge his age, is not diminished by the fact that it has taken many years for the victims to report. Our experience in speaking with survivors tells us that those who have suffered from Harris’ criminal acts will believe that, notwithstanding his age, Harris must be punished for his actions. They have suffered and, in their minds, so must he.

We must never assume that although an allegation relates to events said to have occurred many years ago, the bringing of that allegation to the appropriate authorities will not make a significant contribution to the victim’s life.

There are many other lessons to be learned from looking at past instances of abuse. Apart from exposing the actions of an individual abuser, public understanding of the institutional context in which abuse has occurred is of fundamental importance to the community. Although painful, it is also important to the institution. The exposure of failures enables the institution to confront its problems and both recognise and accept the need to implement change. It allows those who participate in the activities of or otherwise engage with the institution to understand how it failed, giving them knowledge which will assist the institution to avoid problems in the future.

It has been reported to us that many of the institutions we have publicly examined have responded by examining the cause of their problems and how they may be overcome. We also know that other institutions, who have not yet been examined in public, are conducting similar reviews. The Royal Commission has provided the incentive for those who have the responsibility for children in institutions to acknowledge the potential for failure and make changes which will minimise the risk of those failures being repeated in the future.

As you know, although many people believed it would take longer, the Royal Commission was originally required to complete its work by the end of 2015. Now that we understand the nature and scope of the problems the Commissioners have been able to define the “project” which we believe must be completed if the issues are to be adequately addressed. That project requires two further years of work beyond the end of 2015. As we state in the Interim Report, that time is required to complete the essential private sessions and public hearings and develop the authoritative policy initiatives. Even then we will only be able to publicly investigate a small fraction of the institutions where we have received allegations. We know of more than 1,000 we could look at. Even with another two years we can only look at about 60. With the knowledge we now have the Commissioners have defined a “project” which we believe will enable Government, relevant institutions and the community to understand what has happened and make changes to ensure that institutions are a safer place for our children. However, we are firm in our view that the Royal Commission must complete the project by the end of 2017.

Although we have asked Government for two more years we are conscious of the pressing need which many institutions have for recommendations across a range of issues of particular concern. I have said on more than one occasion that notwithstanding any final reporting date, the Commissioners will report to Government in relation to particular issues as soon as our work in relation to an issue is complete.

However, it is also important to recognise that recommendations for change either by statute, regulation or institutional practice must be properly considered and consultation across all of the jurisdictions must occur. We are not just a Commonwealth Commission but have Letters Patent or similar authority from each of the States and Territories.

Most Royal Commissions are given objectives which confine the issues which must be examined. Consideration of the Terms of Reference of the other two Royal Commissions presently underway in relation to home insulation and trade unions makes this plain. When our Royal Commission was set up nobody knew how many people would come to talk to us, nobody knew how many institutions might have to be looked at and nobody had assessed the complexity of the policy issues which required resolution.

Our Letters Patent require the Commissioners to fully explore claims of systemic failures in institutions and look for those from which best practice can be identified. We have now held 14 public hearings in which a variety of systemic failures have been examined. Two of those hearings are the subject of a public report. More reports will soon follow. We have also been able to identify and have discussed areas where institutions have responded appropriately to the issues which have confronted them. Although we will separately report on each of the public hearings, we will draw from those hearings particular issues which will be carried forward, and through a structured process develop recommendations for change.

The task we have defined contemplates a total of 70 public hearings, assuming we complete our work at the end of 2017. We will be able to look at only about 60 institutions. You will understand why today I do not give you a list of the institutions which we will seek to examine. However, there is a detailed list which we have determined having regard to the type of institution, its geographical location, the nature and number of allegations we hold in respect of that institution and the systemic issues which may be revealed by a public inquiry.

The Letters Patent emphasise the importance of allowing survivors to share their experiences to both assist with the healing of survivors and assist in developing strategies and reforms. We have now conducted almost 1,900 private sessions. Although for many survivors a private session is a difficult and stressful experience, the overwhelming response we have from people is that they have found it beneficial and healing to be able to tell their story, often for the first time, to a member of the Royal Commission.

Apart from those who have come to us in private sessions we have approximately the same number of people who have provided us a written account of their experience. This means that we have now received well over 3,000 stories of the abuse suffered by people when they were children.

Many people in private sessions have told us that they have come to tell their story in the hope that by doing so the abuse which they suffered will never be suffered by another child. Many have reflected upon the failures of their particular institutions and come with suggestions for change. Not surprisingly they emphasise the need for children to have the ability to be able to report what has been happening to them. Empowering children to be able to speak to parents or other adults in a supervisory role and, most importantly, be believed, is a fundamental need recognised by many.

Another issue commonly identified by survivors is the lack of understanding by a child of the fact that the conduct of the abusive adult is something which should not have occurred. Many survivors report that, being a small child, they did not understand the nature of the abusive act and the purpose of the adult in inflicting it upon them. It is critical to our endeavour to provide child safe environments that the Commissioners explore these issues with the assistance of people who have devoted their professional lives to research in the area.

There has been some discussion recently about the manner in which the Royal Commission is undertaking its task. There are clearly some misconceptions. The Commissioners welcome public discussion of our work. But we do ask that those who engage in that discussion first read the speeches I have made and consider the reports we have released. It is only informed discussion that will help us in our work.

Firstly, as I have already said, but it bears repeating, it is not correct that any institution will have to wait until the end of the Commission to be told of our findings and recommendations. Two reports, dealing with Scouts and out-of-home care and the YMCA have already been published. The YMCA have already responded by making significant changes in personnel and reviewing their practices. We will provide separate reports in relation to policy issues as soon as the detailed work to bring forward authoritative conclusions and recommendations has been completed.

Secondly, we have not only heard from church leaders: Government agency heads have given and will continue to give evidence where this is relevant.

Thirdly, roundtables and other public consultations are an important tool in the Commission’s work. For those who are interested podcasts will be made available of each roundtable and a summary will be published on our website. We do this to ensure that the next stage in our consideration of any issue benefits from informed discussion with people, institutions or governments who know what others have said and may as a consequence assist with a focused and mature consideration of the issue.

Fourthly, one of the many imperatives in the Letters Patent obliges us to enquire and make recommendations which ensure justice for victims of sexual abuse through redress, support services and referral of allegations for investigation and prosecution. I know that these are difficult issues. We have no choice but to consider them.

Many survivors have told us of their experiences when they complained of their abuse to the institution in which it occurred. Some institutions have developed a formalised process for their response. Others address these issues in an ad hoc fashion. In some States redress schemes, which include modest monetary payments, have also been developed. However, they are not universal.

Providing an appropriate response and redress to a person who has been abused raises many complex questions. A number of institutions have recognised the need to review the response which they have made to people in the past. However, they are hesitant to move forward without understanding the recommendations which the Royal Commission may make in this area. Notwithstanding the complexities of the task we recognise the need to address these problems at the earliest possible date. We have developed a program which will allow us to identify the issues, collect relevant information and provide recommendations. We are seeking to publish our conclusions in a separate report by the middle of next year.

Some of you will be aware of the complexities involved. It is common for institutions to recognise the need to separate their pastoral or restorative response to a survivor from any process which provides monetary redress or compensation. Institutions which have responded by offering money have generally also been the decision-maker as to the amount which should be provided. Such a process is burdened by a fundamental conflict. That conflict is evident in some schemes where a cap is placed on the maximum payment which can be made. Although a redress scheme may need a cap, if it is imposed arbitrarily by the institution responsible for the payment it can be difficult for a survivor to accept the process as other than token and insincere. The problems are made worse if the person seeking redress is not aware that the institution has imposed a cap.

Survivors generally identify three fundamental elements of an effective redress scheme. Many people seek an apology from the institution, and sometimes from the abuser, which acknowledges and accepts responsibility for the harm done to them. They need the institution to accept that a member of that institution inflicted great harm and has caused great suffering.

Many survivors have a need for effective and ongoing counselling provided by appropriately qualified professionals. This comes at a cost, particularly where in some cases counselling is necessary for years or decades. Survivors understandably look to the institutions to meet that cost.

Apart from suffering personal health issues many survivor’s lives have been seriously compromised in other ways. In some cases the damage is so great that they have never been able to complete an education, establish satisfactory personal relationships and provide the security of a home and other basics of life. The process by which the sexual abuse of a child can seriously damage the personal development of the individual may not be fully understood. However, it is clear beyond argument that for some people this will occur. To help with these difficulties many survivors seek a money payment. For some it brings an acknowledgment of the failure of the institution. But for others it reflects a need for financial assistance to sustain their lives.

I appreciate that people from various organisations, including your own, Leonie Sheedy, have called for a nationally funded redress scheme. This is one response which the Royal Commission must consider. However, defining the essential elements of such a scheme and the source of its funds is complex. It is not difficult to recognise that an appropriate redress scheme should provide a consistent response to anyone who may have been abused by any institution wherever located within Australia. Abuse and its consequences cannot be distinguished by State, region, diocese or parish. Both the factual threshold which must be crossed to be eligible for redress and the financial response should be consistent if the process is to be fair.

There are other complexities. The obligation which is contained in the Letters Patent to consider justice for victims requires us to look at the “rules” of civil liability as well as any redress scheme. We cannot avoid the issues. The two must be considered together. I know there is a view that rules of civil liability should be left to the High Court. I do not understand the intellectual foundation for that view. Having regard to the High Court’s previous approach to issues of vicarious liability and the difficulties presented by the “Ellis defence” and statutes of limitation, the High Court would almost certainly say this is not an issue for it but for the Parliament. As Brennan J said in Dietrich v The Queen “changes in the common law are not made whenever a judge thinks a change desirable.” (Dietrich v The Queen (1992) 177 CLR 292 at 320). On issues of such general importance and complexity Parliaments look for guidance from Law Reform Commissions or other properly constituted inquiries. These issues were discussed by Mason J in State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633. In our case the Royal Commission has been asked to assist by making recommendations to government. We cannot avoid this task. But it is complex and requires consultation with many groups and individuals. Although that process has begun it requires time if our recommendations are to have any prospect of being accepted.

It is already apparent that the work which the Commission is doing is bringing significant understanding and provoking change across a number of
institutions. I understand that in NSW the Department of Family and Community Services has responded to the case study of the Parramatta Girls Home. Its staff are being trained to understand and more effectively manage the institution having regard to the issues which emerged during the study. The NSW Children’s Guardian has also signalled changes to policies and procedures.

Following the YMCA study that organisation is reviewing its employment and management practices. All local councils in NSW which provide after school care have responded by initiating a review of their own facilities and practices.

In Queensland the Brisbane Archdiocese of the Catholic Church has responded to our work by engaging professionals to deliver programs for school children and training staff on the prevention of child sexual abuse. A child safety audit has also been initiated in five parishes.

At a national level the Catholic Church is taking steps which indicate a recognition of the need for greater transparency. The Truth Justice and Healing Council has been established with a promise of “commitment to justice for victims and survivors”. The Commission’s engagement with the Council has been wholly positive, which is reflected in the public statements of its Chief Executive, Mr Sullivan.

During the course of the public hearing in Sydney, Cardinal Pell accepted the need for the Church to review its reliance upon the Ellis Defence. He acknowledged that there must be an effective institutional response to the damage done to an individual who is abused within that institution. A similar position has been accepted in public hearings by the Salvation Army (Eastern Territory) and the Christian Brothers.

Earlier this week Mr Sullivan, speaking on behalf of the Truth Justice and Healing Council, said:

“In cases of child sexual abuse, all Church authorities should have a legal entity that can be sued and that legal entity should be backed by insurance or the Church’s assets.”

He also said that:

“It’s up to all Church authorities to advise their lawyers that is the policy and those lawyers should get with the program.”

Many institutions have undertaken a review of their response to the needs of victims who have previously come forward. This is marked by the Salvation Army’s undertaking to review every claim it has previously considered. A similar approach has been initiated by the Sydney and Melbourne Catholic Archdioceses and the Christian Brothers. We have heard of other organisations which have recognised the need to reconsider these matters.

I have mentioned in previous speeches that I have written to the Holy See asking for copies of documents relating to complaints of abuse in respect of Australian priests or religious. The Royal Commission has now received two sets of documents, relating to individual Catholic priests. The Holy See has indicated that where documents relating to any person are not available from an Australian source, copies held in Rome may be provided. However, the letter further states:

“… this Secretariat respectfully suggests that requests for all information regarding every case – which include requests for documents reflecting internal ‘deliberations’ – are not appropriate. As is the case with all other sovereign subjects of international law, the Holy See maintains the confidentiality of internal deliberations related to its judicial and administrative proceedings, and indeed depends upon deliberative confidentiality to ensure the integrity and efficacy of its judicial and administrative processes.”

Apart from the response of institutions it is plain that the work of the Commission has significantly impacted on the national conversation about the abuse of children. An increase in matters coming to the police has been reported. I expect that as we continue our work many more people will feel able to bring their allegations, either to the Commission, or directly to the police.

I am conscious of the fact that the work we are doing may be having an adverse impact upon the institutions which we are examining in public case studies. This is an inevitable product of past failures within those institutions. I recognise that in their various ways each of the institutions we must look at otherwise makes a significant contribution to the wellbeing of many in the community. It is now apparent from the evidence and public statements of some of the major institutions that they recognise that, unless they acknowledge the failures and accept responsibility for them, their capacity to re-establish their public standing will be limited. A genuine acknowledgement of failure brings the opportunity for survivors to heal and enhances the capacity for an institution to effectively continue its work in the community.