Care Leavers Australia Network (CLAN)

4 July 2015

Geelong, Victoria

The Hon Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse Addressed the Care Leavers Australia Network (CLAN) conference.

One year has passed since I spoke with you in Sydney. At that time the Commonwealth Government had just received the Royal Commission’s interim report which detailed both the work we had already completed and the work we believed necessary to fulfil our terms of reference.

When I spoke with you previously the government had not announced its response to our request to extend the time for the Commission. That announcement was made in September. The Royal Commission will now have until the end of 2017 to complete its many tasks.

It would be possible to continue further, there are so many institutions where there are problems. However, I have informed the Attorney-General that in the Commissioners’ view the five year term for the Royal Commission will enable us to complete the research and policy work necessary to make comprehensive and effective recommendations for the future.

At the time of the interim report I was aware that within our original three year time frame we would only be able to conduct about 30 public hearings. With the additional time we will of course be able to increase that number. However, I emphasise, as I have previously emphasised, that although we have enough information to justify a public hearing into more than 1000 institutions we will only be able to look at somewhere between 50 and 60 in a public hearing.

The institutions we have chosen to examine in a public hearing have been selected to enable us to provide an understanding of the problems which have existed across different types of institutions and in different parts of Australia. Although those public hearings will enable us to draw some general conclusions in relation to the failure of institutions I appreciate that many people will be disappointed because the institution in which they were abused will not be publicly examined.

The additional time for the Commission will also enable us to hold more private sessions. At present we estimate that the maximum number of private sessions we can complete could be in the order of 7000.

We have already completed in excess of 3600. Whether this will be sufficient private sessions to enable everyone who wants to tell us their personal story to meet with a Commissioner is uncertain. I am concerned that it may not be. It will not be long before we have to confront the issue and determine with government the appropriate response.

As you know private sessions were created by an amendment to the Royal Commissions Act 1902 (Cth). The Parliament took this step so that survivors would be able to tell their personal stories in a confidential meeting with Commissioners. It is an opportunity for those who have suffered to tell of their abuse and have it accepted.

Private sessions provide us with valuable information which we use when selecting the institution to examine in a public hearing.

The Royal Commission also holds private hearings. These hearings have a different purpose and take a different form to private sessions. Whereas private sessions are informal, private hearings are a formal process. Witnesses are sworn to tell the truth. Private hearings are normally held to assist the investigation process.

Witnesses who give evidence in a private hearing will often be required to give evidence at a public hearing. Apart from aiding the investigative process private hearings also provide the Commission with an opportunity to evaluate a witness’s evidence and determine whether it is responsible to allow that person to give evidence in a public hearing.

The private hearing procedures of the Royal Commission are similar to those which have been used by Royal Commissions and permanent commissions of inquiry for many years. They have been used in the course of the Ballarat investigation to which I will return shortly.

As of today the Royal Commission has conducted 28 public hearings. Twelve reports of those hearings have been forwarded to government. We have a program of public hearings which will cease early in 2017. It will be necessary to bring them to an end by then in order to allow the Commissioners sufficient time to complete reports of public hearings, increase the number of private sessions that can be undertaken, and finalise our recommendations.

I am sure you are aware that in recent weeks the Commission commenced a public hearing into the Catholic diocese of Ballarat. There are a number of reasons why this diocese was chosen for a public hearing, not the least of which is the number of perpetrators and survivors who come from that area.

Before we commenced the public hearing the Commissioners had conducted a number of private sessions in Ballarat and met with survivor groups. It became clear that there was a significant need, not only for us to look at issues in Ballarat but to conduct a public hearing in the local courthouse. Because so many people have been abused the fabric of the community, particularly the Catholic community, has been significantly impacted.

I have been told that there are some people in the Ballarat community who would deny that abuse occurred at all. There are others who do not want it spoken about. However, as I said at the hearing in Ballarat unless the criminal conduct of abusers is talked about and acknowledged and the true position understood the capacity for healing of the community is significantly diminished.

And that is true of all the work the Royal Commission is doing in public hearings and private sessions. Talking about and acknowledging the past is bringing with it a resolve by many people and institutions to make changes for the better protection of children.

As you know it was decided to call perpetrators to give evidence in the Ballarat hearing. Gerard Ridsdale has been called and others will be called later. The Commission gave considerable thought to the issues surrounding perpetrators giving evidence before deciding to take that step.

We were conscious of the possibility that survivors would be troubled by seeing perpetrators and hearing their evidence. For this reason we took steps through our community engagement staff, including counsellors, to ensure any possible impacts were addressed.

The evidence of perpetrators is of considerable significance in our work. They have a capacity to tell us of the relationship between themselves and more senior members of their institutions, including the bishop or archbishop if they come from a religious institution.

They can tell us if others knew of their offending conduct and help us to understand how the church responded or failed to respond to that conduct. They also have the potential to provide us with valuable information to assist us in answering what I have previously described as the ‘why’ question.

Our data reveals that at least one third of the private sessions, and at least 37% of the allegations we have received, relate to Catholic institutions. We would be remiss if we did not attempt to understand whether there were particular characteristics within the Catholic Church, including the selection, training and management of priests, which increased the likelihood that ordained members of the Church would become abusers of children.

If we are to provide a satisfactory answer to the ‘why’ question we have to be able to understand the characteristics of offenders and any short comings in their personality, training and management which contributed to their abusing young children. Abusing priests are also the primary source of information about Catholic Church treatment programs and their effectiveness.

Apart from the Ballarat hearing we have heard from abusers in other hearings. Abusers gave evidence in the Marist Brothers hearing as well as in the Knox Grammar hearing. Each of these hearings has brought forward evidence which is material to our understanding of the response of institutions to abuse and its management by the relevant institutions.

I have been told by Royal Commission staff who are working with survivors that the concerns which some may have held about the calling of Gerard Ridsdale did not materialise. Indeed my staff have indicated that many survivors were comfortable with Ridsdale giving evidence. They have welcomed the fact that, as they see it, Ridsdale has been called to give a public account of his offending.  

There are other aspects of the Ballarat hearing which could be discussed but I do not have time. However I should mention one quite remarkable event which has occurred. In the days immediately following the hearing parents, parishioners and other community members have been conducting what has become known as the ‘loud fence’ campaign.

They have been tying bright ribbons to the fences of the former St Alipius Boys School and St Patrick’s College as a sign of support for survivors and their families affected by sexual abuse. The ‘loud fence’ stands in contrast with the silence that was imposed on survivors as children.

The local newspaper has reported that ribbons have been tied on fences in Ballarat, in NSW and in Queensland. But it has not stopped there. I understand that the ‘loud fence’ campaign has reached Bali and Westminster Abbey in London.

As you may know the Commissioners decided that there were two areas of our policy work which required early consideration. The first one was the system of working with children checks, presently a state responsibility, and with different regimes in each state.

I have previously expressed the Commissioners’ concern that we do not have a national scheme of working with children checks and do not even have a capacity for effective exchange of information between the states. I previously said

‘A national framework for working with children checks is long overdue. Its absence is a blight upon the communities’ efforts to provide effectively for the protection of children.’

Nothing which the Commissioners have learnt on this issue would cause me to alter this assessment. Those sentiments are shared by all of the Commissioners.

The Commissioners have now agreed the recommendations which should be made on these issues and I expect the report will go to government next month. The issues raised in the report are complex and will require careful consideration by both government and institutions.

The second area to which we have given priority is redress and civil litigation. The issues with respect to redress are well understood and have received a deal of public discussion. I do not need to say more about them today. However I do want to talk a little about the issues raised in our consideration of civil liability.

Some of you may be familiar with our discussion paper which raised three issues in this area. The first issue is concerned with whether change should be made to statutes of limitation to either extend the period in which proceedings can be commenced or remove any limitation period at all for those who are sexually abused in an institutional context.

It is plain to anyone familiar with the difficulties faced by survivors that because of the nature of their experience it is common for them to take many years before they are able to speak of their difficulties. Conventional limitation periods operate so that many sexual abuse victims with a valid claim may not be able to bring it to court.

In recognition of this problem the Victorian government has legislated to remove the limitation period. If the other states do not follow the Victorian initiative survivors may receive different outcomes depending on the state in which they were abused or the state in which they brought proceedings.

The second and third issues in the civil litigation context are concerned with the duty of an institution to care for a child. One option discussed is to reverse onus of proof, requiring an institution to prove that it conducted itself without negligence. The other option considers whether an institution should be strictly liable for the actions of its members or employees. It is this matter that I wish to briefly discuss today.

The issues are complex and arise from the nature of the relationship between a child and the institution in which they may have been sexually abused. In many of the cases we have looked at children were removed by the state from their family home and placed in institutional care. If the institution was well managed their personal circumstances may have been improved. But for numbers of children the experience was tragically damaging.

Other children will have been voluntarily placed in the care of an institution by their parents. Some of those children will have been placed in full time residential care including boarding schools, and others will have attended schools or other institutions whose fundamental role is to provide care and ensure the education of children.

In each case, whether voluntary or otherwise, the essence of the relationship between the child and the institution comes from the offer made by the institution to care for the child. In response to the offer either the state or the parent gives over day to day care and responsibility to provide a safe environment for the child to the institution. The institution has a different character to a voluntary association, particularly, one which is created by parents coming together to provide incidental recreational facilities for their children.

Provided a survivor is not barred by a statute of limitation from suing an institution in which they were abused the law in Australia presently requires a claimant to prove that the institution negligently failed to discharge its duty of care to them. In the ordinary case a claimant would have to show that the institution either failed to appreciate and respond in a reasonable fashion to the risk of harm to the child or, more likely, knew that a member of the institution was a danger to children but refused to take steps to remove the danger by dealing with the member.

The law in Australia does not presently impose either vicarious liability, or what the law refers to as strict liability, on the institution if a child is sexually abused. This is the position following a decision of our High Court known as Lepore[1] to which I will return in a moment. A question for the Royal Commission and ultimately for the Australian community is whether this position should remain.

The issue has been addressed in Canada and in the United Kingdom. It is unnecessary to discuss today the precise way in which liability has been redefined in those countries. However, in essence an institution in Canada or the United Kingdom must accept liability if a child is sexually abused by a member of that institution.

The common law, which remains the source for many of the obligations which members of the community owe to each other, has considered the issue of vicarious and strict liability in the past in the context of property. As far back as the 18th century Sir John Holt held a merchant liable for the sale, by his agent, of a more inferior product than was sought to be purchased by the buyer. The merchant had no knowledge of his agent’s deception.[2] 

The approach which Sir John took has been taken up in other cases. In one case the House of Lords held a firm of solicitors liable to their client for a fraud committed on the client by their managing clerk.[3] It is striking that although the common law has, in some circumstances, imposed liability on an innocent principal in relation to personal property it has not, at least in Australia, taken the same step in relation to individuals, much less children.

The essence of the property cases which have imposed liability on the principal is the offer that the principal makes to an individual to safely care for that person’s property.

There will be judges, academics and others in the community who have a different perspective, but it is a short step from imposing liability on the principal when the agent or servant deliberately damages or steals a person’s property to imposing a similar liability on an institution when a child is harmed by the wrongdoing of a member of that institution when in its care.

Indeed, if the law protects property in this manner but not children, some people may believe that our priorities as a community are misplaced.

The issue was starkly illustrated by the discussion in one of our roundtables. A person 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 most important case on these issues in Australia is known as Lepore.[4] It progressed through the New South Wales Court of Appeal to the High Court. In the Court of Appeal President Mason said that arguments that it is unfair that an employer should be held responsible for the harm flowing from the commission of a deliberate tort of an employee lose their force when it is recognised that few employers bear the costs personally.

Furthermore, although an employer may be morally innocent, so too is the plaintiff: ‘the contest is between two equally innocent parties’.[5]

The issues are complex and require careful consideration. There have been suggestions by some commentators that resolution of the problem should be left to the High Court. This could be done but as we can see from Lepore,[6] where the judges divided on the various issues, the Court may not be able to provide an authoritative or consistent resolution of the issue.

More significantly, if the High Court was to make the change which has been made in the United Kingdom it would have retrospective operation with uncertain and potentially significant financial impacts upon institutions and insurance companies. It is common place for inquiries such as Law Reform Commissions, Royal Commissions or other forms of special inquiry to be tasked with considering issues with a view to recommending legislative change.

In the Commissioners’ view the significance of the issues justifies the consideration of the way forward by the Parliaments of the states and territories who, if they choose, can legislate for change and also define the limits within which change will occur.

Furthermore, and importantly, unlike the High Court, they could provide that if change is made it will only operate for the future and not for the past. It is for this reason that the Commissioners considered it appropriate to address this issue. Our views will be made plain when the report is published.

During the course of one of our public hearings the question was raised as to whether an institution could be insured against the risk of a deliberate criminal act of a member of the institution. Although there have been suggestions otherwise the answer is that it can.

In fact since that public hearing when the issue arose we have gained a better understanding of the insurance situation. Institutions not only can but some, including the Catholic Church, presently do have such insurance.

Through our research and policy development we are intending to publish detailed primary information and possible conclusions across a range of issues raised by our terms of reference. The work we are doing to identify the principles for insuring child safe places and work practices is fundamental.

To assist us in that area we have a program which will ensure that the voice of children themselves is received and their perspectives and expectations incorporated into our recommendations. Listening to children is a way of ensuring that our work is relevant to their concerns and responds to their needs.

I have previously commented upon the community’s failure to listen to children. Those failures have contributed in significant ways to the abuse of children. We must make sure that we listen to children and that institutional structures, management and culture ensure that children will never again suffer sexual abuse in silence.

As I have mentioned we will soon present to government our recommendations in relation to civil litigation. We will then turn our attention to the criminal law. To assist our work in this area we are publishing a comprehensive research paper on sentencing.

We are also considering the issues of tendency and coincidence evidence and issues relating to multiple allegations in criminal trials which continue to be controversial. To assist out work in this area we are conducting a major study of jury responses to different trial structures, including individual allegations as well as multiple allegations.

The jury project has been conducted by filming a trial, including the judge’s directions to the jury. The film is then edited so that when shown to jurors. Some of the trials will involve multiple counts with different victims. Other trials will have a lesser number of counts but will use exactly the same evidence in relation to the relevant counts.

Apart from providing information about a juror’s capacity to understand and apply the directions of a trial judge, we will also gain some understanding of how juries, both individual jurors and collectively, analyse evidence and make decisions about the credibility of witnesses.

Each of the juries’ deliberations has been viewed by researchers as it is happening and has also been filmed. By using the film researchers will be able to analyse the trials from a variety of perspectives.

Although not entirely novel the study will add significantly to our knowledge of juries generally as well as being a source to guide us in relation to the appropriate structure and jury directions in sexual assault trials.

The project is not small. Approximately 1200 people have been included in the various jury panels. Some have been chosen from people who were randomly called for jury service in Sydney but did not participate in any trial. The remainder come from a random process managed by a market research group.

Inevitably the research settings will differ from a real trial, the time taken for each trial being one significant difference. Notwithstanding the differences I have no doubt that the information gained will prove useful to researchers and others concerned with understanding the functioning of the jury system in the context of sexual assault trials.

The Royal Commission has already looked at the criminal justice process in several case studies, the YMCA, Scouts, Christian Brothers, St Ann’s special school, Swimming Australia, and the Retta Dixon Home. The latter two involve consideration of the prosecution process and the operation of the Offices of the Director of Public Prosecutions in NSW, QueensIand and the Northern Territory.

Significant issues relating to the effective decision-making within those bodies have been raised. Similar issues were considered in the Christian Brothers hearing which concerns offending in Western Australia. We will look at those issues as part of our criminal justice work during which we will consult with DPPs and others involved in the prosecution of sexual offending.

At the half way point of our task it is possible to identify changes which are already occurring in the community. 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.

The hearings in relation to the Retta Dixon home in Darwin also brought a review of its response from the Australian Indigenous Ministries.

In the wake of the Yeshivah hearings the body responsible for establishing Shabad centres around the world announced that it would review their child protection procedures and protocols to see how they can be improved and enhanced.

Sydney’s synagogue presidents and rabbis have also responded. In a meeting of representatives of orthodox synagogues they agreed to offer better training to rabbis and community leaders and implement an accreditation process for synagogue presidents.

I have spoken with many leaders of the various churches across Australia. In those conversations I have been told of the concerns in their communities which have been raised through the public hearings of the Royal Commission. Many leaders have both publically, and also personally with me, given an assurance that they are listening to the work of the Royal Commission and are prepared to implement changes in accordance with our recommendations.

Those recommendations will ultimately cover the range of institutions which engage with children across Australia.

Some months ago we were contacted by the President of the Australian Olympic Committee concerned to engage with us to ensure that all of the sports which form part of the Olympic movement have effective practices and policies to protect children. That work is now well progressed. I understand similar work is also being undertaken by the Australian Sports Commission.

The Royal Commission provides an opportunity to consider and bring forward recommendations for change to protect children in our community.

I am conscious of the considerable resources which the government has made available to us to do our work. The opportunity which the Commission has to bring about change does not often come in contemporary society in which there is always competition for scarce resources.

The Commissioners are committed to ensuring that our resources are utilised so that, so far as we are able, society’s institutions and structures are safe for children, and provide appropriate justice for those who have been tragically abused when they were children.

[1] NSW v Lepore (2003) 212 CLR 511.
[2] Hern v Nichols (Undated, c. 1700) 1 Salk 289 cited in Lloyd v Grace Smith & Co [1912] AC 716, 727.
[3] Lloyd v Grace Smith & Co [1912] AC 716.
[4] NSW v Lepore (2003) 212 CLR 511.
[5] Lepore v State of New South Wales (2001) 52 NSWLR 420, 431 (Mason P) citing Swanton, ‘Master’s Liability for the Wilful Tortious Conduct of His Servant’ (1985) 16 University of Western Australia Law Review 1, 29.
[6] NSW v Lepore (2003) 212 CLR 511.

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