2014 Families Australia Oration

30 March 2014

2014 Families Australia Oration at the Child Aware Approaches Conference - Melbourne, Victoria

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

On 10 April 1874, the New York Times carried an account of the evidence given by a nine year old girl in the Supreme Court of New York on the previous day.

It was the chilling story of the mistreatment of an orphan who had been placed into the care of people by the name of Connolly. Mrs Connolly, who the child was required to call Mamma, was later convicted of her felonious assault.

The nine year old was Mary Ellen Wilson. She was giving evidence in a case brought by Henry Bergh, who happened to be the president of the “Society for the Prevention of Cruelty to Animals”. Bergh had been approached for help by a concerned Methodist mission worker who became aware of Mary Ellen’s circumstances.

One suspects that Mary Ellen’s circumstances were not unique although perhaps unusually harsh. In 19th century America and indeed in many societies children were afforded no rights. They were treated as the property of their parents and guardians. Many suffered great deprivation.

When the New York Times reported the proceedings, there was significant “excitement and indignation in the community”. Mary Ellen was placed into the care of the mission worker.

The year after the proceedings, Bergh founded, with John D Wright, the New York Society for the Prevention of Cruelty to Children, the world’s first child protective agency, which successfully advocated for laws requiring the more humane treatment of children by their guardians. The Society still operates today.

We know that society constantly changes. Although most of us prefer stability in social values and community expectations, our experience is otherwise. Even those of us who hold to fundamental conservative values accept that change is inevitable, if not in our generation in future generations.

Although we may find it uncomfortable to question the values and expectations we hold, history teaches us that hindsight will inevitably reveal the failure of at least some of our present certainties.

Sometimes changes occur without any obvious catalyst: there develops a general community acceptance that something is wrong. At other times an event occurs which sends a shock through the community and demands a response from institutions and governments.

In many areas of our lives, community values and the limits of acceptable conduct, which had been primarily the province of the various churches, have become absorbed into statutory rules under which the conduct of individuals and corporations is regulated and, where necessary, disciplined.

Charity, once the haphazard contribution of voluntary associations, has come in many areas to be accepted as the role of government which raises income and other taxes, many of which are ideas of the 20th century, which subsidise or provide aged pensions, medical facilities, unemployment benefits, child care and myriad other benefits which are seen to be essential in a civilised society.

Looking back, we can see that the shock to many in America when they heard of the plight of Mary Ellen was the catalyst for the first step in major changes in the way our societies perceive children and respond to their welfare.

The actions of a dedicated mission worker and bold animal rights activist, and the desperate circumstances of one child, brought the issue to public attention, prompting a change in general community attitudes to the welfare of children. Read about the case.

Community attitudes to the protection of children in the United Kingdom changed later than in America but were no doubt influenced by the story of Mary Ellen. In 1884 the London Society for the Prevention of Cruelty to Children was established.

The Society changed its name to become the British National Society and in 1889 contributed to the pressure on the Parliament to pass the Prevention of Cruelty to Children Act, known as the Children’s Charter.

The path to change was similar in Australia. During the 1890’s colonial Parliaments, influenced by the British National Society, passed legislation with provisions relating to the neglect of children. Various state societies for the protection of children were created.

They undertook the investigation and reporting of child abuse. However, Dorothy Scott and Shurlee Swain have concluded that, although societies were aware of evidence of child sexual abuse, they chose to ignore it. They comment that “[t]he idealised version of childhood which [the societies] were seeking to construct was an innocent one which had no space for a sexualised child”.

We all have an understanding of the social changes which emerged in western society during the 1960’s. We look back on that period as a time when the community was prepared to openly question previously accepted values and leaders acknowledged an obligation to initiate change.

The organised protection of children was part of this change. Child protection became a political issue. No government could avoid responding.

The protection of children was reframed from primarily a charitable endeavour to a demand from greater society for an organised government response.

The catalyst for this change in America was the publication by Dr Henry Kempe and his colleagues of a paper identifying “the battered child syndrome”. The doctors took up the issue, arguing that there must be significant child abuse within the community.

A similar story is found in Australia. The Australian media played a significant role in increasing public awareness which brought a political response to child protection matters. Pressure built for governments to take greater responsibility, and develop government-based child protection measures.

There was a change from a passive response to active identification of children suffering abuse and neglect. The first mandatory reporting laws in Australia passed through the South Australian Parliament in 1969.

The work of the Royal Commission is bringing an understanding that many children under the supervision of adults within an institutional context or taken into residential care have suffered both sexual assault and gross physical abuse.

The criminal law describes “sexual assault” by various offences which reflect the Parliament’s view of the levels of severity of the offence when the legislation was enacted.

There is a question which the Royal Commission is addressing as to whether the manner in which sexual assault is defined in various statutes remains appropriate.

This is not the occasion to discuss how the pressure for the Royal Commission developed. It is sufficient to recognise that, at least where institutions are concerned, both the government and opposition of the day came to realise that abuse had impacted upon many people.

It was a challenge to the wellbeing of so many in the community that it needed to be openly discussed, the causes identified and effective responses developed.

The pain endured by so many for so long, which had been understood by relatively few, required a community response. Although a Royal Commission can be confronting to those investigated and whose behaviour is publicly discussed, the impact from the confrontation can be the occasion for a major shift in community understanding.

This may bring change in the behaviour of individuals and institutions and an effective legislative response.

I have spoken previously about the three “pillars” which underpin our work. Private sessions, public hearings, including round tables, and research, which is assisted by issues papers. Each process brings its own outcome and they will ultimately come together to inform our final recommendations for change.

Although I recognise a need for an early response to many issues it is important that the recommendations we make have been adequately considered and appropriate people and institutions consulted if our recommendations are to bring lasting benefits.

As of last Friday the Commissioners have held 1,426 private sessions. We have also received 1,328 written accounts from survivors or their family and friends. I have referred information in relation to 141 matters to police in different states. There are presently 1,065 people in the queue awaiting a session. We continue to receive about 40 requests for a private session each week.

Many people find it difficult to talk of their experience and are hesitant about the possibility of reactivating their trauma. The Commissioners are constantly told by people who come to private sessions of others who they know and who are on the cusp of coming to talk with us.

I still cannot identify how many will ultimately come and talk to us. We have only just begun to engage with people in prisons, people with disabilities and people in remote communities.

The overwhelming response from people who come to a private session is positive. We have been careful to employ appropriately trained people to answer the telephone when the initial contact is made and we have in place professional counsellors to assist people who come to a session.

Recognising that many people will experience a decline in mood following their session we are careful to follow people up to ensure they have adequate support available.

Some comments which are typical of people’s responses when asked by counsellors about their experience in a private session include “I felt immense relief” and “I felt empowered and glad that I attended”. One attendee described the process as “fantastic” and that she felt “important” and “heard”.

Another said the process was “surprisingly worthwhile”, and was “ecstatic” to be finally heard. A common response has been that if this process “would prevent this happening to one child then it would all be worth it”. Another person said “I was relieved, empowered, pleased”. One person said: “It was the best stressful experience I’ve ever had”.

Many people speak of the significance of the fact that, in the private session, their story has been heard and accepted for the first time. For many there is a sense of relief, giving them a more positive view about their future.

There can be little doubt that Parliament’s foresight in amending the Royal Commissions Act to provide for private sessions has and will bring great benefit for many people.

The nature of private sessions does not allow rigorous analysis of the information we gain. However, the following may be of interest:

At the time they attended a private session, 90 percent of the people who have come to us were 40 years of age or older; 70 percent were 50 years or older;

Nearly 62 percent of the people we have spoken with were sexually abused in a faith-based institution – 25 percent in religious residential and day schools; 20 percent in faith-based welfare institutions and 17 percent in other religious institutions.

Nearly 35 percent were abused as children in a school setting – 26 percent in day schools, the majority of which were religious schools, and nearly 9 percent in a residential school; and

Thirty percent of people coming to us were abused in welfare institutions, including orphanages, children’s homes and residential facilities. The majority of these welfare institutions were faith-based institutions.

Just over 41 percent of the institutions mentioned in private sessions were run either by a Catholic order or diocese;

Government-run institutions accounted for 21 percent – these included juvenile detention and a range of welfare institutions.

You will all have some understanding of the work the Royal Commission is doing in public hearings. Because of the intensive investigative and analytical work required to prepare and conduct a public hearing, which is both instructive and fair, we must be selective in the institutions which we examine in public.

We must also be careful to avoid interfering with any ongoing criminal investigation or prosecution. It is clear we must look at a representative range of institutions, religious and non-religious, across each of the states and territories.

One important indicator is the number of cases of abuse of which we are aware coming from any particular institution. Many different institutions have come to our notice.

In addition to the significant number of reports of abuse in foster care, we have received allegations of abuse in more than 1,950 institutions. For this purpose we define an institution as a separate body which may be part of a large organisation. For example, an individual parish or school may be part of a larger denominational structure.

In 168 of these institutions, we have received allegations from five or more victims. There are also 13 institutions where we have received allegations from 30 or more victims. Although the Royal Commission has been given significant resources, they could never be sufficient to allow the examination of more than a relatively small selection of the institutions in which we are aware there have been problems.

I am sorry that many people will be disappointed that their particular institution and their own story will not be publicly examined.

We have now held public hearings into around 20 institutions. In order to maximise our capacity the Commission will generally sit in panels of three Commissioners when conducting public hearings. On occasions a single Commissioner will sit. However, this is only likely to occur when the issues to be discussed are generally historical.

It is important that more than one Commissioner hear the evidence when contemporary issues of policy are likely to come into focus.

Primary research is often difficult to fund in Australia. Unless directed towards some identifiable economic efficiency or medical advance, it can be difficult to attract either public or private funding for an in depth consideration of issues.

This is particularly true of research into social issues. With the identified need for the Royal Commission and the significant commitment by government to our task has come a budget that enables the Commission, either from our own people or by commissioning the help of others, to develop a significant research program.

When developing our research agenda, we have been careful to ensure that we are devoting resources to achieve the maximum benefit for the community both now and into the future.

We engaged Associate Professor Leah Bromfield, a respected academic in the field, to consult with other leading academics and experts to assist us to determine the issues that our research should examine.

Our Terms of Reference are broad, and predictably there are issues which raise more questions than we have the time or resources to explore. To assist our decision-making we organised the potential research projects into three categories. We have taken the same approach when identifying the institutions which should be the subject of a public hearing.

The categories are broadly “must”, “should” and “could”: that which must be done to fulfil the Terms of Reference and can be completed within the current timeframe and available resources; that which should be done to fulfil the Terms of Reference if additional resources of time and money were available; and that which would be of assistance, but which was not central in fulfilling the Terms of Reference. Given our present time frame and budget, only research in the first category has been committed to.

Wherever possible, the Commission will draw upon existing research and information. However, in some areas critical to our Terms of Reference this research does not exist. Our research is designed to “fill research gaps” from which authoritative conclusions may emerge.

The research projects to which we are committed fall into one of the following categories:

  • Identifying child sexual abuse;
  • The responses of institutions in which child sexual abuse has occurred;
  • The response of government and its statutory authorities to child sexual abuse;
  • How best to respond to the need for treatment and support needs of victim/survivors and their families;
  • Why does child sexual abuse occur in institutions?
  • Preventing child sexual abuse in institutions, which includes the sub themes: primary prevention and preventing recidivism;
  • What we can learn from past inquires and research to ensure this Royal Commission has a positive impact; and
  • The history and characteristics of specific institutions of interest.

In most of our research, private sessions and public hearings, we hear from adults. Only very infrequently do children have the opportunity to provide input into the systems and means for their protection.

We have commissioned researchers, skilled in research with children, to undertake a project in which they will gather the views of children and examine with them the factors that make them feel both safe and unsafe in institutions. It may prove one of our most valuable pieces of research.

One of the questions that emerged early in our work was the need to attempt to understand the prevalence of child sexual abuse within institutional contexts. The existing evidence was dated and each study only related to one type of institution.

There are a number of potentially significant confounders in their research, including very considerable delay in reporting, 20 years or more on average for children, and the high level of under-reporting.

The study looked at child sexual abuse reported by child survivors over the last five years using records held by police, child protection agencies, education departments and working with children check administering bodies. The report is not yet ready for publication but some of the available results may be of interest.

The best available indicators, nationally produced, estimate that depending on the particular state or territory, between 3.3 percent and 6.6 percent of all reports of child sexual abuse made to police within the last five years occurred within an institutional context.

The researchers concluded that this approximated to five percent of all cases of recently reported allegations of child sexual abuse and would equate to an annual total of between 400 to 600 allegations. The researchers emphasised that this was a conservative and maybe a very conservative estimate.

However, it does suggest a significant continuing problem of sexual abuse in an institutional context. It confirms the view that a great deal of abuse occurs in families. It is of course likely that the existence of the Royal Commission will increase the rate of reporting.

Police data indicated that the sexual abuse of children in an institutional context was very much a school based event. Depending upon the state or territory the percentage of the abuse in schools ranged from 68 percent to 95 percent. Safety in care data suggests that children in out of home care have a heightened level of vulnerability.

The most common age of victims when their abuse commenced was between 10 to 14 years; again, depending on the state or territory, this ranged from 45 percent to 60 percent. Ten to 14 year olds were over represented in institutional locations compared to other locations.

The findings in relation to gender are complex. Females are more likely to be sexually abused than males: rates for females abused in an institutional location, depending on the state or territory, ranged from 64 percent to 79 percent. However, for males who were abused, a higher proportion of cases were in an institutional location compared to other locations than for females.

Proportions for males ranged between 1.4 to 2 times greater than proportions for females. Males were also likely to take more than five years longer than females to report abuse.

Consistent with all other research into child sexual abuse, perpetrators in an institutional context were overwhelmingly male. Surprisingly, more than two thirds of abusers in an institutional context were children and young people.

Historical data suggests that males were more likely to be sexually abused in institutions than females. Past inquiries and research into institutional child sexual abuse have led us to focus on adult perpetrators. The changes evident in the data may reflect changes in residential, educational and religious institutions over time.

However, they may also be confounded by factors such as different patterns in reporting for males compared to females or different patterns in police recording of complaints for adults compared to juvenile perpetrators. Further research is needed before we can be confident that the results of this study truly reflect changing patterns in the sexual abuse of children in institutions.

The Royal Commission has now been in effective operation for about 12 months. Many issues have emerged, some of which will be taken forward and discussed in round tables and public hearings. One major issue is the manner in which there should be a financial response, if any, from institutions, including government, to the sexual assault of people when they were children. Should there be a redress or compensation scheme?

No one should assume that I have any view, much less any concluded view, about the issue, but matters of financial assistance, access to counselling, apologies and memorials are of great significance to many of the survivors from whom the Royal Commission has already heard.

They are matters which many institutions are continuing to deal with as complaints of child sexual abuse come forward. Some religious leaders have already publicly acknowledged that their approach to these issues in the past may have been inadequate or inappropriate.

In public hearings and private sessions, the Commissioners have heard evidence and received information from survivors about their experience when seeking compensation or redress, both through formal legal mechanisms and through current or past redress schemes. Some survivors have been satisfied with the outcomes.

Others have been dissatisfied. Some survivors have not pursued existing opportunities, in some cases accepting legal advice that the process would be difficult or doomed to failure.

The existing approaches from institutions bring quite different experiences for survivors and may bring markedly different outcomes, sometimes when there is no apparent reason for the differences, at least having regard to the nature of the abuse and its consequences.

We have now conducted two public hearings in relation to the Catholic Church’s Towards Healing scheme, and we are presently holding a public hearing in relation to the Salvation Army’s policies, in respect of support for survivors, including their approach to redress.

When the Commission heard evidence in Sydney touching this issue, the Commissioner of the Eastern Territory volunteered that the Salvation Army would review all payments which have been made to ensure they have been fair.

This is a significant step. The Anglican Diocese of Grafton is doing the same. Cardinal Pell was of the same opinion in relation to people abused within the Sydney Archdiocese. I suspect, and the Commissioners are hopeful, that as a result of the Royal Commission’s focus on this issue other institutions will respond in a similar manner.

It is apparent from the work we have already undertaken that designing a fair redress scheme, assuming that one should be created, raises significant and difficult questions.

These questions become more difficult when endeavouring to define a scheme which may extend across more than one institution or group of institutions. The questions are many and varied. Some of the issues have ramifications beyond issues of sexual abuse including the legal liability, if any, of unincorporated associations.

In what circumstances, if any, should institutions be responsible for the sexual assault of a child by a member of that institution? If there should be responsibility, is it moral or legal?

If moral, what are the appropriate elements of that moral obligation? Do they differ from the elements of the obligation which the law might impose? Should institutions provide financial compensation on the same basis as would be ordered by a court in civil litigation? If a survivor is unable to work because of the abuse they suffered in the institution, should redress extend to compensation for lost earnings?

Some institutions have more assets than others. If because it is either a legal duty or moral obligation, should survivors injured by the wealthier institutions receive higher compensation payments than those injured by poorer institutions? How should fairness and consistency between survivors be achieved in these circumstances? What should be the position if the institution has ceased to operate and has no clear successor institution?

If there is a national scheme, as many propose, how should the financial contributions of institutions be determined? Should participation in a scheme be voluntary or compulsory? Can the scheme be made compatible with an institution’s insurance cover?

There are many other questions.

The sexual abuse of children mostly occurs where there are no witnesses. What level of verification or proof should be required to establish that a claimant has been sexually abused? How should institutions be involved in verifying or contesting claims for compensation? Should the courts be removed from the process and claims resolved in accordance with an administrative decision-making model?

What sort of support should be available for claimants when seeking compensation? Should counselling and legal advice be provided by any compensation scheme and, if so, should there be any limits on such services?

If a survivor has already received some financial compensation for the abuse through one or more existing schemes or other processes, should the financial compensation already received be taken into account in any new scheme?

If some form of national redress scheme is to be recommended, all of these questions will need to be answered. If a scheme is thought to be appropriate in principle, whether or not to recommend it may depend upon whether it is possible to devise a scheme that is fair to both claimants and institutions. It must be timely and supportive in its processes while maintaining consistent procedures in handling claims in all Australian institutions.

If it is accepted that, whether or not there is a national scheme, the common law should continue to respond to claims, the Commissioners must consider the present legal rules with respect to liability of an institution for the unauthorised and criminal acts of its employee or other persons carrying out its functions.

Both the legal structure of institutions, an issue relevant to claims against churches but, also, against other unincorporated bodies, and the liability for the criminal acts of another must be considered.

These are difficult issues. They have been addressed in the Ellis case and by the High Court in New South Wales v Lepore (2003) 212 CLR 511. The trend in common law countries may be towards accepting liability as did Lord Phillips in Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1.

The issue has been raised by the Royal Commission with representatives of the Catholic Church, including Cardinal Pell. Before reaching any conclusion in relation to matters of redress, we will consult widely and may hold round tables to ensure we understand the community’s views about these issues.

When the Commission started its work, we had a limited understanding of the nature and extent of the problems we would discover. We commenced by conducting private sessions. From those sessions and by drawing upon knowledge that was already available we gradually came to understand the issues we faced.

Recognising that one of our fundamental obligations was to listen to people in private sessions, we have structured our work to give private sessions priority. As I have indicated, the demand for private sessions continues at a high rate and shows no significant sign of abating.

During our first week of private sessions we became aware of the problems at the YMCA when two parents of children attending the after school care centre at Caringbah told us of their experiences.

The response of the YMCA NSW to an employee’s conduct raised issues of concern in relation to management at various levels, and how a child safe organisation should operate. The YMCA is one of the largest providers of outside of school hours care in Australia.

The employee who assaulted the children was Jonathan Lord. During his employment with YMCA NSW, he groomed and sexually abused a number of boys between the ages of six and 10, both at YMCA and elsewhere. Lord met many of the boys he abused through his employment with YMCA. A number of the offences committed by Lord were committed on YMCA premises and during YMCA excursions.

The case study explored how children can be groomed by offenders and provided important lessons on how parents and work colleagues can be manipulated to give an offender access to children who they intend to assault.

The case study highlighted the need for institutions to have plans and policies which make plain how the institution will respond to serious allegations made against staff, including dealing with police investigations and court processes, whilst supporting and keeping staff and families appropriately informed.

The case study also considered the role, responsibility and attitude of YMCA NSW’s senior management. Issues in the evidence included whether YMCA failed to adequately acknowledge its own systemic failures in relation to Lord and shifted the blame onto junior staff.

YMCA NSW management’s understanding of the problem of child sexual abuse was also the subject of evidence. The Commissioners’ report on these issues and many others will be made available to government in the near future.

Early this year we had achieved sufficient understanding of the issues we must look at to be able to develop a concept plan. That plan sets out the work which we believe we can complete within the current time frame of our Terms of Reference – the end of 2015.

However, having regard to the demand for private sessions and the public hearings, if the Commission concludes at the end of next year there would be many tasks left uncompleted. Our current estimates suggest that at the end of 2015 there may be 2,000 people who will have asked for but not received a private session.

I have spoken with the Attorney General, Senator Brandis, about these issues and as you may be aware he has told a Senate Estimates Committee of our discussions. The interim report, which will be provided to government at the end of June, will endeavour to identify the tasks which we understand we should complete and our estimate of the appropriate time frame in which to complete them.

I am often asked how the Commissioners are coping with the responsibilities we have. I could not suggest that the many hours we spend listening to people whose lives have been destroyed because of sexual assault when they were children are not difficult.

They are.

Many men of my own age break down and weep when telling their stories. They are stories of personalities damaged, education thwarted, legitimate expectations dashed, marriages lost and children alienated.

We are listening to people whose lives have been damaged and in some cases destroyed by the perverted actions of adults, people who both they and their parents had a right to trust. It is no exaggeration to say that, apart from individual lives damaged, whole communities have been divided and their fabric destroyed by the sexual abuse of children within the institutions of that community.

It is too early in our work to form authoritative conclusions as to the nature of an institution and its management which provide the opportunity for adults to abuse children. However, there are some common characteristics which have emerged.

In many institutions where we have been told of abuse at any significant level there is a structure where children are required to respect and unquestionably obey the dictates of the adults in charge. Importantly, the parents of those children generally have an unquestioning acceptance of the authority and good intentions of the members of that institution.

The parents have trusted their children to the care of a residential institution, school or church, expecting that, by reason of the promise made by the institution, the child’s physical and spiritual welfare will be protected and developed.

As we are now coming to learn the trust placed in those who have authority in these institutions has many times been misplaced. The respect paid to and the unquestioning acceptance of the authority of those in charge allows offenders to exploit their position of trust and abuse children. The child is defenceless to the advances made to them and unable to report it.

They believe that if they report they will not be believed. In some cases we are learning that following a report the offender has been moved to another location where he can continue to offend.

The work the Royal Commission is doing should lead all institutions where abuse has occurred to acknowledge their past, accept the obligation they owe to survivors and resolve to do whatever may be necessary to ensure that, so far as possible, it never happens again.

Nearly all of the leaders of the different religious bodies and other institutions we have looked at in public hearings have sat in the body of the hearing room throughout the evidence of the victims.

While this must have been distressing, I have no doubt that their presence has helped them to gain an understanding of the survivors’ experience. For many who have suffered, it offers continuing affirmation of any apology they have been given.

We have received a number of reports of organisations which have already responded to the work we are doing. I have already mentioned the organisations of which we are aware which are reviewing their past response to survivors. I understand that the YMCA has responded to the public hearing by reviewing employment and management practices. I have been told that all of the NSW local councils, which provide after school care, have responded to the public hearing into the YMCA by initiating a review of their own facilities.

The New South Wales Department of Family and Community Services has responded to the case study of the Parramatta Girls Home. It is conducting seminars for its staff, with the assistance of experts in child sexual abuse, as well as taking steps to ensure that young people leave care with an education.

The work that the Royal Commission is doing is revealing profound failures in the management of issues of the sexual abuse of children in various institutions. There have been fundamental breaches of the trust placed in them for the care of children. Just as the story of Mary Ellen shocked the communities of the 19th century, the emerging evidence of failure in or own community has shocked many people. The work we are doing is changing the Australian community’s conversation about the care of children.

The Commissioners’ hope is that, through our work, a process of healing will be initiated for many survivors and permanent change made to the way institutions are managed and respond to sexual abuse of children. The necessary changes must be reinforced by appropriate regulation and supervision.

The shock we are all experiencing will hopefully, as similar shocks have done in the past, bring real change for the children of future generations.

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