Addressing the National Council of Churches - Safe as churches? conference - Sydney, New South Wales

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

Introduction

Watch the video of Justice McClellan’s statement.

Thank you for inviting me to address your conference today. I am sorry that I am unable to deliver this address in person. Unfortunately the other demands on my time have made that impossible.

I last spoke to you in September 2015. Since that time the Royal Commission had held a further 25 public hearings. That brings the total number of public hearings to 57. Our public hearing program concluded in March this year with a discussion of the nature, cause and impact of child sexual abuse.

Our public hearing program was extensive. We examined more than 1.2 million documents. We heard evidence from more than 1,200 witnesses. The Commissioners sat for more than 440 days. Hearings have been held in every state and territory and in a number of regional centres and towns.

In addition to the hearings in which we sought to understand the conduct of individuals and institutions, the Commission has conducted public hearings with a policy focus. These include Case study 24 – Out of Home Care and Case studies 38 and 46 into Criminal Justice issues.

Towards the end of last year and through the first few months of this year we held a series of review hearings. A number of institutions, including some faith based institutions, who had previously been examined in a public hearing were invited back to discuss their responses to our findings.

The Commission also held a hearing into the current policies and procedures of Commonwealth, state and territory governments in relation to child protection and child safety standards, including responding to allegations of child sexual abuse.

Public hearings have a significant role in driving institutional and regulatory change. Many institutions who have not themselves been the subject of a public hearing have already responded to the problems revealed in similar institutions and have implemented changes or reviews to improve the safety of children in their care.

As of this week 33 case study reports have been published. The remaining case study reports will be published in the coming months.

The Commissioners have continued to hold private sessions with survivors. For those of you who may not be aware a private session provides an opportunity for a survivor, or a survivor’s family member, to tell their story of abuse to a Commissioner in a protected and supportive environment.

It is the primary way for the Commissioners to bear witness to the abuse and trauma inflicted on children who suffered in an institutional context. The Commissioners have now held more than 6,700 private sessions.

Some of you may be aware of our extensive research and policy development program. This program has had the assistance of national and international experts across many disciplines. The program has four broad areas of focus: prevention, identification, response and justice for victims.

The Commission has published 44 research reports. But for the resources given to the Royal Commission much of this research would never have been undertaken.

These reports are an important part of the Royal Commission’s legacy. We have also published consultation papers in relation to criminal justice, records and record-keeping, out of home care, complaint handling and response and redress and civil litigation.

I have now referred 2,025 matters to authorities, almost always the police, with a view to the possible prosecution of an offender. At this stage we have been advised that there have been 127 prosecutions commenced as a result of these referrals. However, the volume of referrals is so great it will take some time before all the matters are processed and prosecutions commenced.

When I spoke to you last time the Royal Commission’s final report on Working with Children Checks had recently been published. That report contains 36 recommendations. It is available on the Commission’s website. The report in relation to redress and civil litigation was released in September 2015. It contains 99 recommendations.

In the redress report the Commissioners said that in order for any redress process to deliver justice it is essential that there be equal access and equal treatment for survivors – regardless of the location, operator, type, or continued existence or assets of the institution in which they were abused.

For this reason the Commissioners recommended that the Australian Government should establish a single national redress scheme.

We said appropriate redress should include three elements:

1. A direct personal response by the institution, including an apology, an opportunity for the survivor to meet with a senior representative of the institution and an assurance as to the steps the institution has taken, or will take, to protect against further abuse.
2. Access to therapeutic counselling and psychological care as needed throughout a survivor’s life.
3. Modest monetary payments as a tangible means of recognising the wrong survivors have suffered.

We recommended a set of principles by which redress should be funded. Those principles were:

• The institution in which the abuse is alleged or accepted to have occurred should fund the cost of redress.
• Where an applicant alleges or is accepted to have experienced abuse in more than one institution, the redress scheme should apportion the cost of funding redress between the relevant institutions.
• Where the institution in which the abuse is accepted to have occurred no longer exists and the institution was part of a larger group of institutions or where there is a successor to the institution, the group of institutions or the successor institution should fund the cost of redress.

We also recommended that the Australian Government and the state and territory governments should be the ‘funder of last resort’ with governments meeting any shortfall of funding for the scheme. We do not anticipate there will be a large number of claims in which will require the resources of funder of last resort.

The Commissioners made the following observation about the responsibilities of governments.

‘Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution they were part of, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. The broad social failure to protect children across a number of generations makes clear the pressing need to provide avenues through which survivors can obtain appropriate redress for past abuse.’

On 4 November 2016 the Minister for Social Services, Christian Porter, announced the establishment of the Commonwealth Redress Scheme. In that announcement Minister Porter said that ‘any state, any territory, any church, any charity, who has responsibility in this area will be able to opt-in to the scheme’. Institutions would opt-in on the basis that they fund the cost of their own eligible redress claims.

The Commissioners understand that many churches and religious groups have indicated that they are positively disposed to the Commonwealth’s scheme. This is very pleasing to hear. The need for an effective response for survivors who have been abused in a religious context is undoubted.

The need to provide for their ongoing psychological and psychiatric care is urgent. The risk that a survivor’s compromised health may have tragic consequences is real. It is unacceptable that we should not do what we can to minimize that risk.

The recommendations made by the Commissioners in relation to civil litigation focused on four topics: limitation periods, the duty of institutions, identifying a proper defendant and principles for managing litigation. A number of our recommendations in relation to civil litigation have already been taken up by state and territory governments.

New South Wales, Victoria, Queensland and the ACT have legislation that gives effect to the Commission's recommendations in relation to limitation periods. In fact in NSW and Victoria the amendments made to the Statute of Limitations go beyond the recommendations of the Royal Commission.

We understand that Tasmania is in the process of drafting a bill that will give effect to the Commission's recommendations and that the NT has approved the preparation of a bill to that effect. Western Australia told us they are committed to introducing laws to give effect to the Commission's recommendations in relation to limitation periods.
 
Queensland have now introduced model litigant guidelines specifically for child sexual abuse claims that apply in litigation to which it is a party. They join NSW and Victoria in having such guidelines.
 
In relation to the Commission's recommendations with respect to the duty of care of institutions Victoria has introduced the Wrongs Amendment (Organisational Child Abuse) Bill to parliament.

The Bill provides that in a proceeding on a claim against a relevant organisation for damages in respect of the abuse of a child under its care, by a person associated with that organisation, the organisation is presumed to have breached its duty of care unless it can prove that it took reasonable precautions to prevent the abuse. It will be for the institution to demonstrate they took reasonable steps to prevent the abuse of the child.

Child sexual abuse in religious institutions – private sessions information

As I mentioned earlier we have now heard from more than 6,700 survivors in a private session. To date we have been able to analyse the information given to us by 6,302 of those survivors.

32 percent of survivors who have attended a private session reported abuse in a government institution. 10 percent of survivors reported abuse in a secular institution. 59 percent reported abuse in a religious institution.

37 percent of survivors who have attended a private session reported abuse in a Catholic Church institution. 9 percent reported abuse in an Anglican institution, 4 percent in a Salvation Army institution, 3 percent in an other protestant institution, 2 percent in a Presbyterian and Reformed churches institution, 1.3 percent in a Uniting Church institution, 1 percent in a Jehovah’s Witness institution, 0.6 percent in a Baptist Church, 0.5 percent in a Pentecostal churches’ institution, 0.4 percent in a Churches of Christ institution, 0.4 percent in a Seventh Day Adventist institution and 0.3 percent in a Lutheran Church institution.

70 percent of attendees who reported child sexual abuse in a religious institution were male. 30 percent were female.

The average age that attendees report they were abused in a religious institution for the first time is 10.3 years.

More than half, that is 51 percent, of the survivors who have attended a private session who reported abuse in a religious institution report being abused by a person in religious ministry. Twenty-two percent reported abuse by a teacher in a religious institution.

Criminal justice

The Royal Commission’s criminal justice project is significant in scale. The issues which we must consider cover a broad reach.

One issue discussed in a number of case studies is the circumstance where abuse although known to a responsible person in an institution was not reported to the authorities. The criminal law does not generally impose a positive duty requiring a person to act. However, although unusual it is not unprecedented.

We know that it is often very difficult for victims to disclose or report what is happening to them at the time. We also know that children are particularly vulnerable. They are likely to have less opportunities to report to police and are less able to take effective steps to protect themselves.
 
We also know the perpetrators of child sexual abuse may have multiple victims and may offend against particular victims over lengthy periods of time. Failure to report abuse to the authorities may leave a child, or perhaps a number of children, exposed to abuse.

Reporting offences may be particularly important in an institutional context. Institutions may be conflicted. They have a duty to protect children. They also have an interest in protecting the reputation of the institution. Imposing criminal liability for failure to report is likely to encourage reporting despite the damage this may inflict on the institution’s reputation.

Both New South Wales and Victoria have offences relating to failure to report. In New South Wales there is an offence of concealing a serious indictable offence. In Victoria there is an offence of failure to disclose a child sexual offence.
 
The Royal Commission is considering whether it should recommend that other states and territories follow the lead of New South Wales and Victoria, and if so, what might be the appropriate terms of that offence.

Special vulnerability

As I mentioned the majority of the allegations we have received have emerged from faith-based institutions. This inevitably raises the question “why”. Why is it that in institutions which proclaim faith in God and embrace the highest ethical and moral principles so many children are abused?

Why do some people who proclaim their faith and have accepted a life of religious endeavour breach their obligations to children? Is there something in either the structure, culture, or personal qualities of members of the churches and other religious bodies, whether lay or ordained, that gives them such a prominent place amongst offenders?

One matter is clear. When children are placed in residential facilities, whether an orphanage or a boarding school, access is more readily available to those with evil intent.

This is true of any residential facility. For that reason, as we know, the overwhelming majority of children are abused in a family context. The problems within families were excluded from our inquiry but remain a complex and tragic problem which our society has not yet adequately addressed.

Faith based institutions also provide access to children. That access is available in an environment in which a child’s spiritual development occurs and is nurtured by adults.

Children are brought up to respect, and to accept, the instruction of adults. It is how children learn, both about themselves and society. The child will always be vulnerable to the abusing adult.

Where the adult is perceived by the child to be a manifestation of spiritual good, in some cases especially chosen by God, and able to instruct the child about the mysteries of life, death, belief in God, and good and evil an extra level of vulnerability may be present.

The Commissioners have heard many times from survivors who as children were told that if they tell anyone about the abuse they will be punished by God and may go to hell.  Both physical punishment of the child and alienation from God are threats of which we repeatedly hear. Sometimes the child was told that the abuse afflicted upon them is God’s will.

Remarkably some have been told it is the way God wants them to learn about sex. The calculated exploitation of a child’s innocence is difficult to comprehend. The power afforded to the adult by the institution is corrupted and used to abuse the child.

The special attention which an abusing priest, pastor or religious person may have paid to the abused child is commonly welcomed by the child’s parent.

This will also be true of a child’s sporting coach, lay teacher or dance instructor. That attention may engender a sense in the developing child that they are special. When the nurturing of a child’s spiritual development becomes entangled with affection and misplaced adoration of the abuser, both the risk to the child and the impact of the abuse when it occurs increases.

The loss of a spiritual life for a survivor is common, although not universal. For many survivors this loss compounds the burdens they must carry for the rest of their lives.

A pubescent or post-pubescent child seeking to understand their own identity and place in the world, including their sexual identity, is vulnerable to the affections and special treatment of the adult leading ultimately to disillusionment and, for many, lifelong destructive consequences.

The Royal Commission has undertaken the task of identifying specific elements that institutions should adopt in order to be child-safe. This has involved an extensive analysis of available the research and other evidence gathered by the Royal Commission.

A preliminary list of elements considered to be fundamental to a child safe institution was identified. These elements were then tested in a research study that obtained feedback from a panel of 40 Australian and international experts. The panel agreed that the elements identified were relevant, reliable and achievable. The research, Key elements of a childsafe organization research study – Final Report is available on our website.

The Royal Commission’s final report, which will be delivered to government in December this year, will include an entire volume on making institutions child safe. However, by publishing the research and disseminating the child safe elements early, institutions are able to work on strengthening their child safe practices without having to wait for our final recommendations.

The ten elements that we have identified are:

• Child safety is embedded in institutional leadership, governance and culture
• Children participate in decisions affecting them and are taken seriously
• Families and communities are informed and involved
• Equity is promoted and diversity respected
• People working with children are suitable and supported
• Processes to respond to complaints of child sexual abuse are child focused
• Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training
• Physical and online environments minimize the opportunity for abuse to occur
• Implementation of child safe standards is continually reviewed and improved
• Policies and procedures document how the organization is child safe.

These elements apply to all institutions. It is incumbent on the leaders of those institutions to adopt these principles and ensure that they are followed. All who have leadership responsibility must inform themselves about the principles and ensure that their institution puts them into practice.

I am often asked by people whether I believe that much will change as a result of the Royal Commission. Do I think it has been worthwhile? Will institutions change?

Although in the early days of the Royal Commission the question could not be answered I am now able to confidently give a positive answer.

As we have continued with our work we can already see fundamental change occurring in the way institutions are managed with the introduction of many practices designed to protect the safety of children. Although there may be some people in some institutions who resent the intrusion by the Royal Commission into their institution the overwhelming response is positive.

What we can be certain of is that any institution which does not acknowledge past wrongs and the need for change will lose the confidence of Australians. The community will not accept the legitimacy of any institution which does not give priority to the safety and wellbeing of the children which for which it has responsibility.

I have previously said that the Royal Commission’s work has changed the conversation about child sexual abuse in Australia. As the Commission moves towards the completion of its work in December this year the task which is posed to all of you is to continue to ensure that the institution to which you belong takes part in that conversation. Institutions must make the changes necessary to ensure, as far as may be possible, children are not abused in the future.