'Rights' and 'Wrongs'

Tuesday 14 November 2017 - Melbourne, Victoria

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

To study history is to study change. Sometimes the changes are violent, they are often abrupt. Some are motivated by a desire for greater national or personal wealth. Others are the result of a conjunction of natural events. Many are the product of personal ambition often expressed through government or institutional power. On occasions the events are motivated by a coherent political philosophy. At other times they descend to a chaotic pursuit of power in which individual lives are damaged and lost.

Many historical events are an expression of the common or competing values of the participants. Those values can change with time. Human history reflects those changes. Whatever the issue political, social or economic our understanding of past events and their contribution to contemporary societal values can also change with time. What appeared to be true yesterday may be doubted tomorrow and discarded in a few years time.

The tragic horror of war can be followed by rapid and sometimes violent changes in the communities involved. A violent revolution or civil war may be the vehicle for a reordering of generally accepted political philosophies. The contemporary social order may be challenged. The disposition of power and wealth may change.

The second world war, as with World War 1, was the result of the ambition of some nations, or at the least their leaders, for a dominant role in world affairs. It resulted in a catastrophic and reckless pursuit of power to which those nations were never entitled and could never have sustained. It is marked by Hitler’s determination to exterminate the Jewish people – the holocaust.  Apart from its direct and tragic impact on the lives of millions, the War was followed by changes in national boundaries and the redistribution of political, military and economic power. Populations were displaced. The rate of European migration to Australia and other countries accelerated. It motivated many nations to come together to seek consensus in the restoration of world peace and the maintenance of the wellbeing of all mankind.

The Universal Declaration of Human Rights has its origin in the statement of freedoms adopted by the Allies during World War 2. The Charter of the United Nations that was created following the war confirmed the acceptance of fundamental human rights and freedoms for all people. They find ultimate expression in the Universal Declaration to which Australia is a signatory. Our country played a significant role in its adoption. Although not enforceable under Australian law (I leave to others the debate as to whether it comprises part of the body of customary international law) it stands as the most important set of principles to both inform and evaluate government and institutional conduct in Australia.

The Universal Declaration was finally adopted in 1948. Article 1 reads ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.

Article 3 reads: ‘Everyone has the right to life, liberty and security of person’.

The words are of course plain, their meaning clear. The expressed rights may be readily accepted. However history confirms the difficulties many nations have experienced in meeting the expressed expectations.

The Universal Declaration of Human Rights was followed more than twenty years later, in 1989 by the Convention on the Rights of the Child. The first limb of Article 3 of the Convention reads:

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Again the words are plain but their relevance to particular issues and their acceptance as a relevant principle for conduct in particular circumstances may be contested. Sometimes that contest reflects a clash with political or institutional ideals.

Although Britain and its military capacity were a significant force in the Allied response during the Second World War, the war marked a change in Britain’s international power and influence. The Empire was crumbling and the desire for self determination of many nations accelerated. But the British still saw themselves as a major power in world affairs. In response to the development of nuclear weapons by other nations Britain believed it was necessary to arm itself with the "bomb" to repel any nuclear threat to its homeland or territories.

Denied access to American nuclear knowledge or American atomic weapons testing facilities the British looked on home soil for a suitable place to establish a nuclear testing ground. The closest they came was a remote and inhospitable island off the coast of Scotland. That idea was discarded as too dangerous and so Australia was approached. Our government was a willing host to the British Nuclear Testing Program.

The initial explosions took place in 1952 at the remote Monte Bello Islands off the coast of Western Australia. The first blew an old destroyer apart. It was a relatively small atomic bomb. The tests at Monte Bello were followed by a series of explosions at Emu Field and Maralinga in central South Australia.

Although the Atomic tests were conducted after the Universal Declaration of Human Rights had been adopted they took place many years before the decision of the High Court in Mabo and well before the 1967 referendum authorised the inclusion of Aborigines in the Australian population. It was a time when the health risk from exposure to ionising radiation was well understood. However the imperative to prevent Australians and people of other nations from exposure through dispersion in the atmosphere was not acknowledged. As it happened it was also a time when our approach to environmental hazards was unsophisticated, if not crude.

Those responsible for the testing program at Maralinga were aware that Aboriginal people (they did not know how many) were living on the land and would be endangered by the proposed explosions. Although they understood that the Pitjantjatjara and Yankunytjatjara people occupied the land they almost certainly had no understanding of the spiritual and cultural significance they attached to it.

To facilitate the tests the Aboriginal people were abruptly removed from their land, many put on the next train west, causing profound and long lasting trauma. Their social structure broken and their attachment to the land lost the tragic consequences have been felt by multiple generations of the Aboriginal people.

Once removed from their land the future movements of the Aborigines were largely unknown. Against the possibility that they might reenter dangerous locations one man, the Patrol Officer, was assigned the task of patrolling the large area of the testing ground. His was a hopeless task.

In the report of the Royal Commission into British Nuclear Tests in Australia, in words undoubtedly written by the President the Honourable James McClelland, the Commission said of the approach of the testing program to the safety of Aboriginal people, that attempts to remove Aboriginal people were riddled by "ignorance, incompetence and cynicism". The report concluded “overall the attempts to ensure Aboriginal safety during the Buffalo series demonstrate ignorance, incompetence and cynicism on the part of those responsible for their safety. The inescapable conclusion is that if Aborigines were not injured or killed as a result of the explosions, (and I interpolate the Royal Commission was, given the circumstances, unsurprisingly not able to reach a definitive conclusion) this was a matter of luck rather than adequate organisational management and resources allocated to safety."

The testing program was detailed and complex. It was believed necessary to not only successfully initiate nuclear explosions but to also understand the impact on humans, particularly military personnel if atomic weapons were used in war. At the time it was anticipated that nuclear weapons would be used in battlefield situations making it essential that the likely impacts were identified and effective responses developed for those who may encounter them in combat. This required soldiers and airmen, in particular, to be exposed to radiation. Pilots were required to fly though the mushroom cloud. Aircrew were required to fly with and track the nuclear cloud as it moved across Australia.

Apart from the major detonations the program included many other explosions known as minor trials. These were designed for different purposes, including to test initiation devices for hydrogen bombs. A number of the explosions dispersed plutonium, often attached to fragments of metal, over a wide area.

When the testing program was concluded a clean up program was initiated. It was crude and modest in cost. Although grossly inadequate it presumably reflected the limited understanding of the issues at that time.

To make the area "safe", apart from collecting the more obvious metal fragments and placing them on the ground surface in an area enclosed by a barbed wire fence, the plutonium was dispersed by bulldozers and other heavy machines. The purpose was to create a “safe” level of residual contamination in the soil. It was rightly anticipated that some Aboriginal people would seek to return to their lands. Apart from the fact that the fenced area was not made secure from burrowing animals, which could enter and leave as they pleased, carrying plutonium particles with them, there is no "safe" level for dispersed plutonium. The risk to the Aboriginal people and others who might pass by was not realistically factored into the operation.

There are multiple questions raised by the British Nuclear Testing Program. Whatever our individual response to the question was the testing program necessary, I doubt that it could be carried out today, at least in the location and the manner in which it occurred. I doubt that the general community would tolerate the indiscriminate removal of Aboriginal people from their land. Atmospheric testing of nuclear weapons would not be acceptable today. Deliberate exposure to significant radiation doses would not be allowed. The method used to "clean-up" the plutonium contaminated land would be rejected as unsafe.

Some of you may know that I was counsel assisting the Royal Commission into British nuclear tests in Australia. I am of course Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse. Although the factual issues of concern to each Royal Commission are quite different they have some common themes.

Both Royal Commissions have gathered evidence with respect to social issues and attitudes of Australians in the 1950s and 1960s. Of course the Child Abuse Royal Commission extends beyond that time to the present day. But the starting point for both are the circumstances and prevailing social attitudes after World War Two.

Following the war there was a significant movement of people across multiple nations. Australia accepted a role in resettling migrants, particularly from Britain and other European countries. The migrant population in Australia included significant numbers of children, unaccompanied by adults, who, sponsored and supported by various charities and churches lived in ‘hostel’ type facilities in different parts of Australia. Many were described as "orphanages". In truth many of the children had been "taken" from or abandoned by their parents rather than their parents having died. Many were proffered the prospect of a "better" life in a new country.

Children’s homes, again in the nature of hostels, were also the accepted method for the housing of children from Australian families where the family had broken down or the child had ended up in trouble. They were taken into care.

By this time an organised program to remove Aboriginal children from their families, which had commenced in the early 20th century, had resulted in many of them being placed in institutions. It continued until the 1970s. They are known today as the stolen generations.

With only minimal resources and rudimentary accommodation many children in the "orphanages" suffered great hardship. They lacked a proper diet and were given inadequate clothing, often going without shoes. Education opportunities for some were modest and for others non-existent. They suffered the loneliness that comes from the loss of parents and other family. Siblings who were "taken into care" together were often separated. Many report that it was often years, many years, before they saw their siblings again.

Aboriginal children carried additional burdens. Not only did they lose their family, they lost their connection to their traditional land and culture.

Apart from the harsh physical conditions many of the orphanage children suffered terrible physical and emotional treatment from those who were their carers. For some "carers", particularly from some religious denominations, there was a belief that physical violence and emotional deprivation were necessary to help a child to “grow” and mature into a responsible adult. For some institutions the accepted wisdom was that physical punishment was necessary to remove the "devil" from the naughty child. In other institutions some carers appear to have found perverted gratification from the physical abuse of children.

The inevitable conclusion is that the treatment of the children placed in orphanages was heartless and cruel. But for many children their circumstances were even worse. We now know that many thousands of children were sexually abused in these institutions. They often suffered both violence and sexual abuse.

Governments have a variety of mechanisms available to them when confronted by complex issues. The most powerful being a Royal Commission. They have been utilised to examine both specific issues, why did a particular event happen but also to consider issues which may have consequence for many people in our community.

A glance at a list of Commonwealth Royal Commissions confirm their utility for government across a broad range of social policy issues. Many of course were born of a political controversy. The first Royal Commission was in 1902 which examined the transport of troops from South Africa in the SS Drayton Grange – the most recent being the protection and detention of children in the Northern Territory.

When the Australian governments created the Child Abuse Royal Commission they defined a task of a breadth and complexity faced by few Royal Commissions. No doubt many Australians were aware of some of the problems. "Altar boy" stories were around when I was a schoolboy in the 1950s and 1960s. I knew that there were "migrant children" in homes in Australia but had no idea that they may have been the source of abuse. The cane or the thrown chalk board duster were still the preferred methods of discipline. The continuing possibility of another World War and the impact of the Great Depression pervaded the community’s approach to social order and national politics. Children’s rights were rarely if ever mentioned.

We now know that tens of thousands of children have been sexually abused in many Australian institutions. We will never know the true number. Whatever the number it is a national tragedy, perpetrated over generations within many of our most trusted institutions.

The sexual abuse of children has occurred in almost every type of institution where children reside or attend for some educational, recreational, sporting, religious or cultural activity. Some institutions have had multiple abusers who sexually abused multiple children. It is not a case of a few 'rotten apples'. Society's major institutions have seriously failed. In many cases those failings have been exacerbated by a manifestly inadequate response to the abused person. The problems have been so widespread, and the nature of the abuse so heinous, that it is difficult to comprehend.

The sexual abuse of a child is a terrible crime. It is the greatest of personal violations. It is perpetrated against the most vulnerable in our community. It is a fundamental breach of the trust which children are entitled to place in adults. It is one of the most traumatic and potentially damaging experiences a child could have.

Over 15,000 survivors or their relatives have contacted the Royal Commission. By the time we conclude our work we expect to have heard more than 8,000 of their personal stories in private sessions. Over 1,000 survivors provided a written account of their experience, which has been read and responded to by a Commissioner. For victims and survivors, telling their stories has required great courage and determination. We have also heard from parents, spouses and siblings about the abuse of their relatives, many of whom have died, sometimes through suicide.

Most are stories of personal trauma and many are of personal tragedy. It is impossible not to share the anger many survivors have felt when we understand that they were so deeply betrayed by the people they were entitled to trust.

For many survivors talking about past events required them to revisit traumatic experiences that profoundly harmed them. Many spoke of having their innocence stolen, their childhood lost, their education and prospective career taken from them and their personal relationships damaged. For many sexual abuse is a trauma they can never escape. It can affect every aspect of their lives.

The prevalence of child sexual abuse is difficult to measure. It is believed that as many as 60% of victims never disclose their abuse and only 5-6% ever report to the authorities. When victims do disclose their abuse, it is often after significant delay, sometimes taking more than 20 years and sometimes many years more. Males are less likely to disclose their abuse, and are likely to take longer to disclose than females.

The assumption that various criminal codes and law enforcement agencies, including the judiciary, and I suspect the majority of the community, make is that sexual abuse with penetration leads to the worst outcomes for victims. The true picture is far more complex. The research evidence as well as the experience of mental health professionals finds conflicting support for the assumption that penetration leads to more severe impacts for victims.

One study found that children who had been touched in a sexual way without penetration were more anxious than those who had experienced penetrative abuse. Other research indicates that penetration can be a particular risk factor for later developing severe mental disturbance. The research also suggests that penetration is only one factor affecting the outcome of abuse. Other factors include the betrayal of trust, the amount of violence, and the resulting psychological coercion.

Abuse that is accompanied by other forms of maltreatment such as physical and emotional abuse and neglect tends to be related to worse outcomes for victims.

The sense of betrayal when a child is abused, even abuse which we would categorise as being at the low end of the scale of criminality, by a person who they may have trusted and the shock accompanying that betrayal can be the trigger for significant and sometimes catastrophic psychological trauma.

It is also important to appreciate that not all children who experience sexual abuse go on to experience poor outcomes in the short or long term. Recent reviews suggest that up to 50 percent of survivors do not experience clinically significant symptoms.

The long-term psychological impacts of abuse are the most commonly studied. This research consistently points to a strong relationship between child sexual abuse and poor mental health in later life. Victims of child sexual abuse are almost four times more likely to have contact with a public mental health facility compared with people in the general community. The emergence of symptoms may be significantly delayed. Many victims do not experience psychological problems until an event in their middle life or older ages triggers psychiatric illness which is conclusively diagnosed as being the consequence of their abuse as a child.

The most commonly reported impacts of child sexual abuse are post-traumatic stress disorder, sexualised behaviours and suicidality and self-harm. A recent study reported the prevalence of PTSD among a sample of sexual abuse survivors to be almost 50 per cent.

Other research suggests that victims of child sexual abuse are 18 times more likely than people in the general population to die as a result of self-harm, and almost 50 times more likely to die as a result of accidental drug overdose.

Child sexual abuse is associated with increased levels of neurological dysfunction. Exposure to abuse or neglect in childhood can modify regions of the brain as a consequence of excessive exposure to stress hormones and over-activation of neurotransmitter systems, especially if the exposure occurs during a key developmental period.

Victims of child sexual abuse are more likely to abuse alcohol and other drugs.

Guilt, shame and anger are commonly reported symptoms among victims of child sexual abuse. This is not surprising given the betrayal of trust and violation of personal boundaries involved in sexual abuse. These early experiences can affect the way children and then adults understand the motives and behaviours of other people and how they handle stressful life events. The affects can be life-long.

Research suggests that children who have been sexually abused are at a greater risk for behavioural problems, running away, vandalism and juvenile offending than those who have not been abused. Running away also makes children more likely to commit survival crimes including stealing and becoming prostitutes.

An often unrecognised impact of child sexual abuse is the adverse effect it can have on the human capital of victims and survivors. While there has been comparatively less research in this area, there is some evidence to suggest that victims of abuse experience poorer academic achievement: they are less likely to achieve secondary school qualifications, gain a higher school certificate, attend university and gain a university degree. Maltreatment more broadly has been shown to affect later earnings, with victims of child maltreatment more likely to have very low incomes (less than $12,000 per year) compared with non-maltreated groups.

Each of the personal stories we have heard in private sessions has had a profound impact on the Commissioners and our staff. Without them we could not have done our work. Each survivor’s story is important. These stories have allowed us to understand what has happened. It has been a privilege for the Commissioners to sit with and listen to survivors. The survivors are remarkable people with a common concern to do what they can to ensure that other children are not abused. They deserve our nation's thanks.

More than 4,000 individual institutions have been reported to us as places where abuse has occurred. While some institutions have ceased to operate, others continue to be actively engaged with children and young people. Our resources and the risk of prejudicing criminal investigations or prosecutions meant that we could not publically examine or report on many institutions in which survivors told us they had been sexually abused.

The failure to protect children has not been limited to institutions providing services to children. Some of our most important state instrumentalities have failed. Police often refused to believe children. They refused to investigate their complaints of abuse. Many children who had attempted to escape abuse were returned to unsafe institutions by police. Child protection agencies did not listen to children. They did not act on their concerns, leaving them in situations of danger. Our criminal justice system has created many barriers to the successful prosecution of alleged perpetrators. Investigation processes were inadequate and criminal procedures were inappropriate. Our civil law placed impossible barriers on survivors bringing claims against individual abusers and institutions.

Many institutions we examined did not have a culture where the best interests of children were the priority. Some leaders did not take responsibility for their institution’s failure to protect children. Some leaders felt their primary responsibility was to protect the institution’s reputation, and the accused person. Many did not recognise the impact this had on children. Poor practices, inadequate governance structures, failures to record and report complaints, or understating the seriousness of complaints, have been frequent.

The greatest number of alleged perpetrators and abused children, in Church managed facilities of whom we are aware, were in Roman Catholic institutions. In many religious institutions, in particular but not only the Catholic Church, the power afforded to people in religious ministry and the misplaced trust of parents combined with aspects of the culture, practices and attitudes within the institutions to create risks for children. Alleged perpetrators were often allowed to have access to children even when religious leaders knew they posed a danger. Alleged perpetrators were often transferred to another location where they had access to children but were never reported to police.

The failure to understand that the sexual abuse of a child was a crime with profound impacts for the victim, and not a mere moral failure capable of correction by contrition and penance (a view held, at least in the past by a number of religious leaders) is almost incomprehensible. It can only be explained by acknowledging that the culture of some religious institutions prioritised alleged perpetrators and institutional reputations over the safety of children.

In past generations the trust placed by some parents in institutions and their members meant that abusers were enabled and children's interests were compromised. The prevailing culture that 'children should be seen and not heard' resonated throughout residential care, religious institutions, schools and some homes. Their complaints of abuse either ignored or rejected, many children lost faith in adults and society’s institutions.

It was obvious to the Commissioners early on in our work that in many institutions there were structural and cultural problems which had allowed and in some cases facilitated the sexual abuse of children. Some of those problems had the consequence that, when the abuse was brought to the notice of the institution, the response was inadequate and in many cases unjust. It may have been because of the exalted role of the offender, the desire to protect the reputation of the institution or just to protect an abuser who was also a friend. In some cases, the aggressive hand of the lawyer was engaged, ensuring that an appropriate and just response to a survivor was impossible.

Apart from the institutional imperative to protect individual perpetrators and thereby sustain the reputation and authority of the institution the Royal Commission received evidence that at least in Sydney and Melbourne there was for many years an understanding that the police would protect members of the church who may have offended. It reflected a more general community attitude that it would be detrimental to the entire community if "its pillars" were exposed as criminals. Assumed stability of society was seen to be more important that the protection of the child or justice for children through the prosecution of offenders.

The conjunction of events which the Royal Commission has examined can only be described as a national tragedy. Across many decades many institutions failed our children. Our child protection, criminal and civil justice systems let them down. Although the primary responsibility for the sexual abuse of a child lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and the mechanisms which were available to regulate and control aberrant behaviour failed.

The sexual abuse of children is not just a problem from the past. Child sexual abuse in institutions continues today. We were told of many cases of abuse that occurred in the last 10 to 15 years in a range of institutions, including schools, religious institutions, foster and kinship care, respite care, health and allied services, performing arts institutions, childcare centres and youth groups. We heard in private sessions from children as young as 7 years of age who had been recently abused. In some case studies into schools the abuse was so recent that the abused children are still attending school. We have learned that cultures and practices in some institutions allowed abuse to occur and continue.

The risks to children in different institutional contexts vary. The misuse of the internet has created significant risks to children that could never have been imagined 20 years ago. The incidents of adolescent sexual assault either in or in association with a school environment are increasing. There is a need for continuing development of effective government regulation, improvement in institutional governance and increasing community awareness of the problem. There is a need for the education of the community with respect to the risks to children. We must also develop our understanding of the needs of those who have been abused and be prepared to respond to those needs.

The Royal Commission has been concerned with the sexual abuse of children within institutions. It is important to remember that, notwithstanding the problems we have identified, the number of children who are sexually abused in familial or other circumstances far exceeds those who are abused in institutions.

Valuing children and their rights is the foundation of all child safe institutions. Improving child safe approaches in institutions will reduce the risk of sexual abuse. The best interests of children must be a primary consideration.

There may be leaders and members of some institutions who resent the intrusion of the Royal Commission into their affairs. However, if the problems we have identified are to be adequately addressed, changes must be made. There must be changes in the culture, structure and governance practices of institutions.

A failure to act will inevitably lead to the continuing sexual abuse of children, some of whom will suffer life-long harm. That harm can be devastating for the individual. It has a cost to the entire Australian community. Many survivors will require help with health, particularly mental health, housing and other public services.

Child sexual abuse in an institutional context has been and still will be committed in institutions which lack a healthy culture, where children have no rights, and adults are afforded protection by reason of their power, status or any theological practice.

You may be aware that the Royal Commission has already provided three policy reports to government. Working with Children Checks, Civil Litigation and Redress, and Criminal Justice. The final report, which will be given to the Governor-General on 15 December, apart from detailing our conclusions, will cover a broad range of issues relating to both government and institutions.

Both the Maralinga testing program and the sexual abuse of children in institutions raise questions about the fundamental values of our society. Can it be said that the nuclear testing program was consistent with the Universal Declaration of Human Rights. Was it consistent with the right to life, liberty and security of person that the Aborigines were removed from their land, their traditional culture and social fabric ignored and the health of some put at risk. Was their treatment consistent with a value that acknowledged that all humans are born free and equal in dignity.

There may be some who will ask whether these questions are relevant. They may say that it was imperative that Britain could contribute to the maintenance of world peace justifying the testing regime and its impact on the land and people. This was of course the accepted wisdom of the 1950s and 1960s although I doubt that those responsible for the tests assessed their compatibility with the Declaration of Human Rights.

The Maralinga experience also reminds us that our understanding of appropriate national values reflected in social policy may not lend itself to absolutes. They may vary over time. There was little, if any evidence, given to the Maralinga Royal Commission that the treatment of the Aboriginal people was considered inappropriate at the time. In a world where ‘terra nullius’ was the prevailing doctrine it was not difficult to decide that the Aboriginal lands should be appropriated for the good of the Commonwealth and the traditional owners displaced.

The Declaration of Human Rights was borne from the desire of many nations to embrace common values that underpin human life. The catastrophe of war and the horror of the holocaust made it imperative to attempt to bring order from chaos. I again pass by the question of enforceability. However as social attitudes evolve and change and scientific knowledge increases we must continually assess whether the actions of government, institutions and individuals accord with the generally accepted values of civilised nations. Those values find common expression in the Declaration.

The Report of the Child Sexual Abuse Royal Commission will describe the mistakes made by many institutions. Many of those mistakes are already documented in the case study reports previously provided to government. There will be 44 case study reports in all. They reflect a fraction of the occasions where some governments, institutions and individuals acted contrary to the "rights" afforded to children under the Convention on the Rights of the Child.

The history of both Maralinga and Child Abuse in Australia make plain that "rights" matter. Fundamental rights once identified and adopted by a community cannot be easily cast aside. We cannot expound the virtues of a free and just society and express them through a statement of accepted "rights" if we do not endeavour to ensure that the actions of government and our many institutions are consistent with those "rights".