Wednesday 15 July, 2015

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

Triennial Assembly of the Uniting Church in Australia

I speak to you today as the Royal Commission enters the second half of its five year term. As you are probably aware the Commission was originally tasked to finish at the end of this year. However, the many and complex issues that we are required to examine led the Commissioners to ask the government for a further two years to complete our work. The Commission will now conclude at the end of 2017. I have told the government that there will definitely be no request for a further extension.
 
Our terms of reference provide us with two fundamental objectives: to expose what has happened in the past and to make recommendations aimed at ensuring, so far as possible, that children are not sexually abused in an institutional context in the future.
 
As with any Royal Commission a significant part of our work is done through public hearings. A public hearing will be preceded by intensive investigation and research. Although it may only occupy a limited number of days of hearing time, the preparatory work which must be completed by Royal Commission staff and by parties with an interest in the public hearing can be very significant.
 
The Royal Commission is aware that sexual abuse of children has occurred in many institutions, all of which could be investigated in a public hearing. However, if we were to attempt that task, a great many more resources would need to be applied over an indeterminate, but lengthy, period of time. For this reason the Commissioners have accepted criteria by which appropriate matters are brought forward to a public hearing as individual ‘case studies’.
 
The decision to conduct a case study is informed by whether or not the hearing will advance an understanding of systemic issues and provide an opportunity for institutions to learn from previous mistakes. We must ensure that any findings and recommendations for future change that the Royal Commission makes have a secure foundation. In some cases the relevance of the lessons to be learned will be confined to the institution the subject of the hearing. However, in most cases they will have relevance to many similar institutions in different parts of Australia.
 
Public hearings are also held to tell the story of some individuals. They assist in a public understanding of the nature of sexual abuse, the circumstances in which it may occur and, most importantly, the devastating impact it can have on people’s lives.
 
When the Commission was appointed, it was apparent to the Australian Government that many people (possibly thousands) would wish to tell us about their personal history of sexual abuse. As a result the Commonwealth Parliament amended the Royal Commission Act 1902 to create a process called a ‘private session.’
 
A private session is conducted by one or two Commissioners and is an opportunity for a person to tell their story of abuse in a protected and supportive environment. We have now completed 3,766 private sessions. There are presently 1,527 people waiting in the queue. We receive applications for private sessions at a rate of almost 50 per week. I can also indicate that I have now referred 666 matters, most coming from private sessions, to police to investigate with a view to prosecution of an offender.
 
The people who we talk to in private sessions cover a broad spectrum of Australian society. Each of them has been betrayed by a trusted adult. Each of their individual experiences has left a mark on their lives. For some the lifelong consequences have been catastrophic. Each person’s story is unique with impacts of greater or lesser significance in their life journey and with differing impacts upon their psychological and physical well-being. It is also reported to us that there are many people who cannot tell their story. They have taken their own lives.
 
Commissioners sometimes hear the stories of people who, despite traumatic childhood experiences have never lost their capacity to love and care for others.
 
We have witnessed humour and ingenuity among survivors. But we have also seen profound sorrow, grief and pain that for many may never go away. The label Post-Traumatic Stress Disorder does not convey the full extent of the suffering of these people.
 
The link between childhood sexual abuse and physical and mental health problems later in life is well-established. Both Australian and international studies have found that, amongst other debilitating effects, childhood sexual abuse results in higher rates of depression, eating disorders and social anxiety. Child sexual abuse has been linked to psychotic disorders, including schizophrenia.
 
Although the impact of sexual abuse on survivors has been the subject of academic research it has not, in my view, been well understood in the general community. The assumption that penetrative sexual abuse of a child leads to the worst outcomes for survivors has only limited empirical support. That assumption is embedded in the criminal law of the various states and territories. In fact abuse which many lawyers and others have traditionally regarded as relatively minor can have devastating and lifelong consequences for some survivors.
 
Commissioners have heard many stories from family members who have told the story of a loved one who has committed suicide. What is perhaps lesser known about the links between child sexual abuse and mental health is that it is not only the impact of the abuse itself that can lead to devastating outcomes for survivors. There are impacts on the survivor’s family and others in the community which may be just as critical.
 
It is now apparent that when our task is complete we will have documented a period in Australian society when institutions failed the children in their care. I do not mean to condemn every institution. It is clear that many were managed and sustained by the efforts of both volunteers and paid workers who understood how to manage an institution that provides for the welfare of children. But even then we can recognise that many well-intentioned people did not understand and did not respond to failures which should have been obvious in the institutions of which they were part. Although some institutions operated as single entities most have some integrated or overarching management arrangement or doctrinal regime. Failures may have been evident in the actions of one or a number of people but that does not excuse those in responsible positions who failed to provide appropriate policies to guide the institution and practices to inhibit the actions of offenders.
 
From the work we have done we know that there have been failures to protect children in residential facilities, schools, including boarding schools, Christian churches of every character, Jewish organisations, kindergartens, after school care, sporting organsiations, dance classes, music organsations, scouts, hospitals and other institutions. There is no difference in the nature of the allegations nor in the mechanism for institutional failure between institutions conducted by the government and those in the private sector. When the institution provided residential care it is common to find sexual abuse accompanied by high levels of physical abuse and exploitation of the children’s labour, often for little if any reward.
 
A picture is emerging for us that although sexual abuse of children is not confined in time – it is happening today – there has been a time in Australian history when the conjunction of prevailing social attitudes to children and an unquestioning respect for authority of institutions by adults coalesced to create the high risk environment in which thousands of children were abused.
 
The societal norm that “children should be seen but not heard”, which prevailed for unknown decades, provided the opportunity for some adults to abuse the power which their relationship with the child gave them. When the required silence of the child was accompanied by an unquestioning belief by adults in the integrity of the carer for the child, be they youth worker, teacher, residential supervisor or cleric, the power imbalance was entrenched to the inevitable detriment of many children. When, amongst adults, who are given the power, there are people with an impaired psycho-sexual development, a volatile mix is created.
 
Although the primary responsibility for the sexual abuse of an individual 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 mechanisms which were available to regulate and control aberrant behaviour failed. This is readily understood when you consider the number of institutions, both government and non-government, where inadequate supervision and management practices have been revealed and acknowledged by contemporary leaders of those institutions. It is confirmed by the development, in recent years, of regulatory control by government over many institutions which provide for children, and the development of education programs and mechanisms by which problems can be more readily brought to attention. The most obvious is Working with Children regulations, but there are many others. I am sure that we all hope that from the tragic personal stories and institutional failures revealed in our public hearings the community will be reminded that both individual institutions and governments failed in their responsibility for children. Where once silence was demanded, a child’s complaint, however tentative in its communication, must be heard and given an appropriate response. Whatever the nature of the institution and however its members are respected by the community we must all accept that there may be members of trusted institutions who fail in their duty towards children.
 
The power of the institution must never again by allowed to silence a child or diminish the preparedness or capacity of adults to act to protect children.
 
The Royal Commission has, so far, received 13,256 allegations within our terms of reference. Approximately half of those allegations relate to faith based institutions. We have received 399 allegations in respect of abuse by members of Uniting Church institutions. This figure represents approximately 3% of the total number of allegations. In addition we have received 106 allegations in respect of abuse by members of Presbyterian Church institutions and 62 in respect of abuse by members of Methodist Church institutions, the majority of which relate to incidents occurring prior to 1977. Of the 399 allegations 173 relate to institutions involved in out of home care. 164 relate to boarding schools. The Uniting Church institution with the highest number of allegations is Knox Grammar School with 137 allegations. That school was the subject of a public hearing of the Royal Commission in February this year.  In total we have received allegations in relation to 132 institutions which are either Uniting Church, Presbyterian or Methodist institutions.
 
During the course of our work the Commissioners have learnt much about the way in which an institution’s culture may contribute to, or facilitate, the abuse of children in its care. We know that enhancing institutional accountability encourages positive changes in institutional behaviour. The inevitable question, is in what circumstances, if any, should an institution be made responsible for the sexual abuse of a child by a member of that institution? If it is the case that an institution should be made responsible how, as a society, should we require the institution to take responsibility? Is it preferable that survivors use the civil justice system? Is that system operating fairly for survivors of child sexual abuse? Should we create a redress scheme? And what about the criminal law? These are issues the Royal Commission must consider. I wish to speak a little on each of these issues today.
 
Our terms of reference require us to consider justice for survivors. There are three avenues through which justice can be provided. The first two are the civil and criminal justice systems. However, legal proceedings often present insurmountable challenges, both financial and emotional, to survivors. There can be no doubt that for many people their only opportunity for justice will be through an effective redress scheme.
 
The issue of redress raises many complex questions. They include who should be eligible, how should a scheme be funded, who should manage it, and what benefits should it provide.
 
Two key requirements have been identified. The first is that the scheme must be structured in a way to ensure its independence. The institution in which abuse occurred should not be the scheme’s decision maker. A conflict of this nature has been a troublesome aspect of some redress schemes in the past. The second is that survivors should be treated equally regardless of the institution in which they were abused.
 
There are a number of forms that a redress scheme might take. One approach favoured by almost all of the institutions and survivor groups consulted with is a national scheme administered by the Commonwealth but funded by the relevant institutions, including the various governments where institutional failures have occurred. This is self-evidently the approach which will meet the objective of equal justice for survivors. Each institution’s contribution to the cost of the scheme, including its administration, should be in proportion to the number of survivors abused in that institution.  Of course some survivors will have been abused in institutions which no longer exist or which have no money. Ensuring funding for these survivors is a fundamental requirement of a just scheme.
 
For redress to be effective it must respond to the ongoing needs of survivors. It is clear that survivors need an apology from the institution. There must also be funding for counselling and psychological care. A money sum which adequately recognises the wrong done to the individual is also essential.
 
It is now accepted that abuse can impact a survivor’s personal development in a number of ways. It can affect an individual’s ability to complete their education, to maintain a job and to establish personal relationships. A monetary payment by the institution can serve the dual purpose of both recognising the harm suffered by the survivor, as well as providing financial assistance to the many people who, as a result of their abuse, are struggling to secure the basics of life.
 
Our recommendations on redress will be made public after the publishing of the Commission’s Final Report on Redress and Civil Litigation very soon. Our report will be provided to government within a few weeks.
 
In the last twenty years there have, in some countries, been significant developments in the law relating to the liability of institutions for the sexual abuse of children by members of that institution. The courts in both the United Kingdom and Canada have developed the law so that, depending on the circumstances, an institution can be made liable for the deliberate criminal act of a member of that institution, even when the institution itself has acted without negligence. This is not currently the position under Australian law. While the High Court judges in Lepore, the leading Australian case on this issue, divided in their reasoning, a majority did not consider that vicarious, or strict, liability should be imposed on an institution if a child entrusted to its care was sexually abused.
 
This issue is often framed in terms of whether it is fair for an institution, which has not been negligent, to be made liable for the criminal act of a member. However, it should be born in mind that the relationship between a child and an institution will typically come about because of an offer made by the institution to care, and provide a safe environment, for the child.
 
Prior to its consideration by the High Court, the Lepore case passed through the New South Wales Court of Appeal. The Court of Appeal, by a majority, held that the state of New South Wales, was liable for the sexual abuse committed against a pupil by a teacher employed by the State. President Mason addressed the fairness issue directly. His Honour stated that arguments that it is unfair that an employer should be held responsible lose their force when is recognised that most employers will not bear the costs personally (the insurer will), and that while an employer may be innocent, so too is the plaintiff.
 
The issue was starkly illustrated by the discussion in one of our roundtables. A woman with a senior management role in a child care provider was asked the question as to what she believed was the appropriate response of the law in the event that a child was sexually abused while in care. She responded that as a manager of such an enterprise, without negligence by the provider, she would not want the provider to be liable for the deliberate criminal act of a member or employee of the institution. Her position was different when she looked from the position of a mother. As a mother of the child who she had placed in the care of the provider she would definitely want the provider to be liable even if it had not itself been negligent.
 
The Commissioner’s recommendations on this issue will be made plain when the report is published.
 
A second issue that has arisen in the civil litigation context is the availability of a defendant that a survivor can sue. This issue is particularly acute for survivors who were abused by persons associated with faith-based institutions. While it is true that a survivor will always have a cause of action against their abuser, there are a number of practical reasons why they may either prefer, or only be able, to sue the institution in which their abuse occurred. Their abuser may be dead, have no money or, particularly when the abuse occurred when the survivor was very young, the abuser may not be able to be accurately identified.
 
Under the law in Australia unincorporated associations, including many religious organisations, do not have a distinct legal personality. As a result they cannot be sued. It is common for their assets to be subject to a trust created by statute. This can result in a significant impediment for survivors who wish to pursue legal proceedings against some faith based institutions.
 
This issue has arisen in a number of the Royal Commission’s case studies. In case study 8 we heard evidence concerning Mr John Ellis’ attempts to recover damages for the abuse committed against him by an Assistant Priest from the Sydney Archdiocese. Mr Ellis could not sue the Catholic Archdiocese of Sydney because of its unincorporated status. As a result he commenced proceedings against alternative defendants including the Trustees of the Roman Catholic Church, a statutory body corporate established under the Roman Catholic Church Trust Property Act 1936 (NSW), and the Archbishop of Sydney. The New South Wales Court of Appeal held that the Trustees were not liable for Mr Ellis’ abuse as they played no role in the appointment or oversight of priests at the relevant time. Nor could Mr Ellis sue the then Archbishop of Sydney who had not held that position at the time of the abuse.
 
In another case study the Commission heard of similar difficulties faced by claimants in proceedings against the Christian Brothers in institutions in Western Australia. The Court in that case held that the Archbishop of Perth could not be liable for the abuse suffered by the claimants. He was not liable as a natural person as he was not in the position of Archbishop at the time at which the abuse occurred. Nor was he liable as the corporation sole which was responsible only for land holding and not for the operation of the relevant institutions.
 
The Royal Commission sought submissions on this issue in a consultation paper. Our Final Report on Redress and Civil Litigation which will be with government by the end of August will contain recommendations on this issue. I will not pre-empt them today. However, I am pleased to see that some institutions, including some Roman Catholic and Anglican Church dioceses, have already made changes to make it easier for survivors to pursue claims against them.
 
In his evidence to the Royal Commission in the case study concerning the Melbourne Response Denis Hart, the Archbishop of Melbourne, stated that the Melbourne Archdiocese has recommended that the Church, throughout Australia, provide an entity for survivors to sue. The Truth Justice and Healing Council, in submissions to the Commission, has recommended that legislation be enacted requiring unincorporated institutions to establish or nominate an entity to be the proper defendant to any claims of child sexual abuse brought against the institution. The Archbishop of Sydney, Anthony Fisher, has stated publicly that it is the ‘agreed position of every Bishop and every leader of a religious congregation in Australia that we will not be seeking to protect our assets by avoiding responsibility in these matters’ and that ‘anyone suing should be told who is the appropriate person to sue and ensure that they are indemnified or insured so that people will get their damages and get their settlements.’ [1]
 
The Wangaratta Anglican Diocese has recently agreed to become incorporated. Bishop John Parkes has stated that the need for the diocese to take this step was demonstrated in the redress and civil litigation consultation paper released by the Commission. Wangaratta is the third Anglican Diocese in Victoria to take this step. The Bendigo and Ballarat Anglican Dioceses have already determined to incorporate.
 
As we pass our half way point, and with the publishing of our Final Report on Redress and Civil Litigation, the Royal Commission will shift its focus to the criminal justice issues that our terms of reference require us to consider.
 
We will soon publish a comprehensive research paper on sentencing for child sexual abuse in institutional contexts written by Professor Arie Frieberg, Hugh Donnelly and Karen Gelb. One issue explored in their paper is whether an institution should be held criminally liable, in certain circumstances, for the sexual abuse committed by a person associated with that institution.
 
Historically the criminal law has been concerned with the criminal responsibility of the person or entity which commits the relevant act. However, while criminalising institutional behaviour may seem like a significant step, it is not without precedent. Organisational criminal liability has been a tool deployed to enhance organisational discipline and drive organisational change in a number of areas of the law. This is the case with respect to environmental law and workplace safety legislation.
 
One option put forward in the paper is to recast offences that currently impose criminal liability on individuals so that they apply to institutions. For example s 49C(2) of the Victorian Crimes Act provides that a person in an organisation who has the power or responsibility to reduce or remove a substantial risk that a child will become the victim of a child sexual abuse offence committed by an adult associated with that organisation, and who knows that there is a substantial risk that the person will commit a sexual offence against a child, must not negligently fail to reduce or remove that risk. When introduced to Parliament the Victorian Attorney General stated that one of the key aims of the new offence was the promotion of cultural change in the way in which organisations who care for and supervise children deal with the risk of child sexual abuse. This aim could be further pursued by having the offence apply to the institution itself.
 
It is obvious that the sanctions that would apply to an institution must differ from those that apply to individuals. Imprisonment is not an option and the fine, which may appear an obvious tool, may have unwarranted and deleterious effects on non-profit organisations. But again the law is already pointing the way. The authors identify that probation orders have been developed as a sanction in the regulatory context. Probation orders operate so as to prevent a person from engaging in certain types of conduct for the period of that order. Examples, are found in the Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Act 2001 (Cth). In the transport industry supervisory intervention orders have been used as a sanction against persistent offenders. These forms of sanction represent creative ways of sanctioning an offending institution with the focus of the sanction being the reform of institutional behaviour and the promotion of institutional change.
 
Changes in the civil and criminal liability of institutions may operate to drive effective change and create a more responsive culture in institutions that care for and supervise children. The purpose is to impose a greater discipline on institutions to ensure that adequate policies and procedures are in place to limit the risk to children in their care, and ensure that they respond appropriately and effectively to any risk that might emerge.
 
Apart from the work we are doing in public hearings and private sessions the Royal Commission has an extensive research program with a team dedicated to the development of appropriate policy outcomes. In the next few weeks we will provide government with our report in relation to Working with Children Checks. This report addresses the paragraph of the Letters Patent, which requires the Royal Commission to inquire into:

 

  1. What institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future.

Adequate recruitment, selection and screening practices are key elements of a child-safe organisation. Working with Children Checks are one tool that helps to ensure the right people are selected to work with children. They have been considered in public hearings conducted by the Commission and have been a focus of investigation as part of our policy and research program. This is the first step in the development of comprehensive recommendations designed to create a safe environment for children in an institution.
 
Many other issues are being addressed by our research and policy program. Amongst others we are addressing complaint handling and support services. We also have projects addressing regulation and oversight of institutions and other projects addressing advocacy and support services for victim survivors. You can expect that over the coming months we will ask the Uniting Church and many other institutions to assist in developing appropriate policy outcomes.
 
The work of the Royal Commission has already brought a significant response from many institutions which provide services to children. The Australian Childhood Foundation reports a significant increase in requests for its ‘child safe’ audits from institutions providing services to children.  ACF are scoping a significant audit project with the Australian Sports Commission which oversees 62 different sporting codes.
 
This follows similar efforts by the Australian Olympic Committee. Following the Swimming Australia public hearing the AOC has required Working with Children Checks for all coaches, staff and officials prior to their joining the Australian Olympic Team for the Rio games next year. The President of the AOC has engaged directly with the Commission to ensure that effective practices and procedures are in place for all of the sports which operate under the banner of the Olympic movement.
 
There are many other examples of institutions responding to the work of the Commission.
 
Following the YMCA hearing into after school care in Sydney that organisation has responded through its national body to review its management practices and organisational culture in relation to children. It has engaged an independent consultant to assist in the process.
 
We have completed two studies of the Salvation Army in Australia which looked at its eastern command. A further case study will examine the southern command. Following our first case study the Salvation Army has restructured its professional standards office and reviewed its response to individual survivors. Similarly the Christian brothers have indicated that following the cases study in Western Australia they would reopen cases already settled and examine whether the previous response was appropriate.
 
The Royal Commission held a public hearing into the Melbourne response, which is the Catholic Church response to survivors in the Melbourne Archdiocese. During the hearing Archbishop Denis Hart announced that he had appointed a former Federal Court judge to conduct a review of their process.

Following the public hearing into the Retta Dixon Home in Darwin the head of Australian Indigenous Ministries agreed to sell AIM property to help fund compensation for survivors abused in that institution. It also offered a national apology.
 
After the hearing into St Joseph’s Orphanage, Neerkol, the Rockhampton Diocese have appointed a coordinator to respond to allegations and complaints of abuse.
 
In October last year the Anglican Diocese of Grafton accepted the Royal Commission’s two recommendations contained in its case study report into North Coast Children’s Home. It has pledged to implement ‘fully and completely’ the recommendations for them to review professional standards procedures and investigate disciplinary action against the Rev Campbell Brown. [2]
 
During the Ballarat hearing in May, Sydney Archbishop Andrew Fisher order a review of the professional standards of the Sydney Archdiocese.
 
The impact of the Royal Commission has extended beyond its impact on institutions entrusted with the care of children. For example, the NSW Government has proposed legislation that would require chief executives of organisations that deal with children to undergo the same screening as front line staff. In announcing the proposal the Minister referred to the Royal Commission’s report on Scouts Australia.
 
I am also aware of the response which the Uniting Church has made to the work of the Royal Commission. I have been told that the Church has reviewed its practices and policies and, where thought necessary, introduced new policies to safeguard children. I also understand that the Church has focused on an appropriate education program to increase awareness of child safe programs. Other significant changes including the response of the Church to survivors have been made.
 
I am grateful for the invitation to speak to you today. I also express my sincere thanks for the time and effort your leaders have taken to ensure the Royal Commission is assisted in its work by the Uniting Church. I anticipate that all of you here today have been deeply affected by learning of the abuse of many children in various institutions and the damage, in many cases catastrophic, to so many lives. I greatly value your support as we together endeavour to change the culture, policies and management within Australian institutions, so that as far as possible, the sexual abuse of children in institutional settings is eliminated.