Sydney, New  South Wales

The Hon. Justice Peter McClellan AM
Chair, Royal Commission into Institutional Responses to Child Sexual Abuse addressed the National Council of Churches in Australia - Safe as Churches 7th Conference. 

Introduction

I recently conducted a private session with the mother of a boy from a Catholic school. The events the mother related occurred only a few years ago. The boy was an active and keen student and along with many of his colleagues would often arrive at school well before class. 

One of the Brothers at the school, who was responsible for the sick bay, had implemented a ‘measuring program’ on a group of students. The program was not authorised by the school, in fact the school authorities did not know it was happening. The program involved the teacher measuring each male student in every part of their body including the upper thigh.

The intention was to measure each of the participating boys at intervals throughout their time at the school.

The son of the mother who came to the Royal Commission was recruited to the program in year 7. One day he happened to tell his mother what was occurring. She was immediately concerned. Although her son did not see the program as being out of the ordinary his mother suspected that it may have been grooming behavior which could lead to very serious problems.

She raised the matter with both her husband and her son contemplating that she would take the issue to the school headmaster. They did not want this to happen. They were concerned about an adverse reaction from the school community which may rebound upon the child. But the mother did not stop.

That would have been the easy way. She was so concerned for her son and the other boys in the program she kept going. The initial response from the school was not good, but again she persevered. Only through her perseverance did the school come to realise that there was a serious problem which required an effective response.

Ultimately the Brother was taken from the school and assigned responsibilities away from any children.

I tell this story for two reasons. Firstly, it underlines the need within the community to increase the knowledge of parents and others with responsibility for children about the type of behaviour which may constitute grooming and which can lead to very serious problems for children.

Only if parents understand what may be happening to their children can they play an effective part in their protection.

Secondly, it is essential that those in responsible positions in institutions understand that what may seem to be innocent behavior may be otherwise. Institutions must encourage both children and parents to bring issues of concern to their attention.

They must ensure that parents understand that even if their concerns ultimately turn out not to be justified it is important that those concerns be brought to the attention of the institution. I will return to these issues shortly.

A private session with one of our Commissioners provides an opportunity for a survivor, or a survivor’s family member, to tell their story of abuse 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 sexual abuse in an institutional context.

On 19 August 2015 one of the Commissioners, Commissioner Milroy, conducted the Royal Commission’s 4,000th private session. As it happens that private session was conducted with a prisoner in a NSW prison who was sexually abused as a child.

In addition to the more than 4,000 private sessions we have now conducted, there are currently about 1,500 people waiting in the queue. We continue to receive requests for private sessions at a rate of 40 per week.

As some of you may be aware in the United Kingdom the Independent Inquiry into Child Sexual Abuse has been established to review the extent to which institutions in England and Wales have discharged their duty of care to protect children against sexual abuse.

I was pleased to see that in her opening statement the Chair, Justice Goddard, discussed that inquiry’s ‘Truth Project’; the mechanism it will use to hear from victims and survivors. Indicating they will follow a similar process to our private sessions, Her Honour said:

“Anyone who doubts the value of establishing a truth process of this kind need only consider the effectiveness of the private sessions run by the Australian Royal Commission to appreciate the intrinsic merits of this exercise. The Truth Project we are putting in place closely follows the successful arrangements adopted in Australia, where the response has been remarkable.”

We have now held 32 public hearings into a wide range of institutions. We have held them in every state and territory. Each public hearing is preceded by a period of intensive investigation and research.

Although the hearing itself may only occupy a limited number of days, 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.

Decisions about which institutions we choose to examine in a public hearing are 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.

The Commissioners are mindful of the need to ensure that any findings and recommendations we make have a secure foundation. In many cases the issues explored, and the lessons to be learnt, will have relevance beyond the individual institution being examined.

Public hearings are also an important means of enhancing the community’s awareness and understanding of the nature, circumstances and, the often devastating, impact of child sexual abuse.

The Royal Commission has now received a total of 16,361 allegations. Of these we have confirmed that 11,988 allegations of abuse are both within our terms of reference and relate to an identified institution.

There are many allegations which we receive where, for readily understood reasons, a person cannot be precise in identifying the institution in which they were abused. We have received allegations in relation to 3,566 institutions. Of the 11,988 allegations, 7,049 allegations relate to faith based institutions. 3,612 relate to government institutions.

A further breakdown of the 11,988 allegations reveals that we have received 4,418 allegations relating to Catholic Church institutions and 871 relating to Anglican institutions. We have received 411 allegations relating to Uniting Church institutions. There are an additional 123 allegations relating to Presbyterian institutions and 69 allegations relating to Methodist institutions.

The Commission has received 519 allegations in relation to Salvation Army institutions.  A public hearing to inquire into the experiences of former child residents of a number of institutions operated by The Salvation Army (Southern Territory) between 1940 and 1990 will be held in October in Adelaide.

We have received 137 allegations relating to Jehovah’s Witness institutions. The Royal Commission held a public hearing to inquire into the Jehovah’s Witnesses and Watchtower Bible and Tract Society of Australia Ltd in July this year.

The Commission has received 80 allegations relating to Jewish institutions, 59 relating to Baptist institutions, 56 relating to Seventh Day Adventist institutions, 50 relating to Australian Christian Churches institutions, 32 relating to Lutheran institutions, 30 relating to Brethren institutions, 18 relating to Mormon institutions, 4 relating to Coptic Orthodox institutions and 2 relating to Greek Orthodox institutions. 

I have now referred 727 matters to police to investigate with a view to the possible prosecution of an offender.

The Royal Commission will finish its work on 15 December 2017. To allow time for preparation of our final reports our public hearing program will come to an end in early 2017.  This will allow us sufficient time for the completion of reports into public hearings. It will also allow us to complete as many private sessions as possible, and finalise our recommendations to government.

Apart from private sessions and public hearings our policy and research program underpins the work of the Commission.  We are examining a diverse range of topics. These include child safe organisations, diversity and vulnerability, information sharing, mandatory reporting, advocacy and support services, complaint handling and response, records, information sharing, prevention and treatment and what I refer to as the “why” question.

The Royal Commission has now completed two final reports, both of which contain recommendations to assist people who have been sexually abused and enhance the protection of children in the future.

Those reports are the Working With Children Checks report and the Redress and civil litigation report.

Working With Children Checks report

The Royal Commission’s final report on Working With Children Checks was released by Government on 17 August 2015. The report makes 36 recommendations designed to strengthen Working With Children Check regimes throughout Australia.

As some of you may be aware each state and territory presently has its own scheme, although the South Australian approach is very modest. Each of the eight schemes operates independently of the others. The schemes are inconsistent and complex. There is inadequate information sharing and monitoring of Working With Children Check cardholders.

This lack of consistency and integration raises significant issues. In a country of 24 million people with mobility amongst those who work with children, the present system means that children are being afforded different levels of protection depending on the state or territory in which they are located.

A further consequence is that if an organisation, say the Scouts, has a national gathering it cannot guarantee parents that every adult supervisor has the same level of Working With Children accreditation. It means that people who have responsibility for children in more than one jurisdiction must have multiple checks.

I have previously described the lack of a national framework for Working With Children Checks as ‘a blight upon the communities’ efforts to provide effectively for the protection of children’.

The recommendations in our report seek to remedy these problems. We have recommended a national approach. That approach would involve the establishment of a centralised database similar to, and which could utilise, the present CrimTrac arrangements. The effect would be one accreditation which would operate across jurisdictions.

To further facilitate a national framework we have identified a set of standards so that key aspects of Working With Children Checks regimes are dealt with in the same way.

There would be consistency with respect to who requires a check and how a person’s records are accessed. Our recommendation is that state and territory governments amend their schemes to accommodate these standards.

Because any Working With Children Check scheme can be constructed to provide that a fee is taken for the service the proposal would come at a minimal cost to government.

Amongst other changes this reform would bring a common approach to the issue of who needs a Working With Children Check. It will be of interest to many here today that we have recommended that all religious leaders and officers or personnel of religious organisations be required to have a Working With Children Check.

We have asked that governments implement the majority of our recommendations within 12 months. For those who may be interested the full report can be accessed via the Royal Commission’s website. The Commissioners are firm in the view that the current disparate arrangements should be modified to bring consistency and avoid duplication.

We trust that the suggested changes designed to enhance the safety of children can be taken forward through effective negotiation between the Commonwealth and the States and Territories. Although a Working With Children Check is not a guarantee of children’s safety it is accepted as an essential step in constructing a child safe environment.

Redress and civil litigation

On the 31st of August the Royal Commission delivered its Redress and civil litigation report to the Governor-General. This report contains the Commission’s final recommendations on these issues. I will say nothing about redress today. The matter is now with the various governments.

In its consideration of the civil law the Commission focused on three key areas which impact on survivors: limitation periods, the duty of institutions, and the proper defendant to civil claims.

It was clear from a number of our public hearings that the limitation periods prescribed by the statutes of the various states and territories present a considerable, and sometimes an insurmountable, burden for survivors wishing to commence civil proceedings. The lack of uniformity in the length of the limitation periods across the jurisdictions raises issues of fairness for survivors.

It may also lead to more complex and prolonged litigation as disputes may arise as to the appropriate forum in which to hear the relevant claim.

Historically, the policy rationale for limiting the period a potential claimant had to commence civil proceedings was to prevent a person from ‘sleeping on their rights’. They were intended to ensure claims are brought in a timely fashion. Applying that rationale to survivors of child sexual abuse is clearly inappropriate. Many survivors are unable to disclose their abuse for many years. Victims of child sexual abuse often wrongly blame themselves and are embarrassed and ashamed.

This can make disclosure very difficult. Many survivors will need psychological care and assistance when they do disclose. It is likely to take a lengthy time before a survivor can even contemplate commencing legal proceedings.

The second issue in the civil litigation context concerns the duty of institutions. Should vicarious, or strict, liability be imposed on an institution if a child entrusted to its care was sexually abused by a member or person associated with that institution?

The law in both England and Canada has been developed so that, depending on the circumstances, an institution can be liable for the deliberate criminal act of a member of that institution, even when the institution has not itself been negligent.

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.

The issue was starkly illustrated by the discussion in one of our roundtables. A senior manager of 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.

A further issue arising 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, including case study 8 in which 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, and case study 11 where we heard of similar difficulties faced by claimants in proceedings against the Christian Brothers in institutions in Western Australia.

I am pleased to see that some institutions have already responded to these problems.  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 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. Wangaratta is the third Anglican Diocese in Victoria to take this step. The Bendigo and Ballarat Anglican Dioceses have already determined to incorporate.

Criminal justice

With the delivery to government of our Final Report on Redress and Civil Litigation the Commission has now turned to consider, in relation to justice issues, the criminal law.

The Commissioners have heard in private sessions of the importance many survivors place on criminal justice. It is more important to some survivors than compensation or other forms of redress. These survivors understand that the criminal justice system serves not merely to punish the offender. It is a vehicle through which the community can be made aware that the offender is someone other than the upstanding person they may have been perceived to be.

They see it as a mechanism through which the offender can be forced to publically acknowledge the significant harm they have caused.  

A number of our public hearings have raised issues related to our work in criminal justice. Those hearings include our inquiries into Scouts Australia, YMCA NSW, St Ann’s Special School in Adelaide, Christian Brothers’ residential institutions in Western Australia, Swimming Australia, the Retta Dixon home in the Northern Territory and Bethcar Children’s Home.

Through our public hearings and from private sessions we are generating significant insights into the impact of abuse on survivors. These insights are transforming not just the understanding the Commissioners have of the impacts of abuse, but the understanding of the wider community.

What we are learning about impacts has particular relevance in our work in relation to criminal justice. Acts which the various criminal codes and law enforcement agencies, including the judiciary, have considered to be relatively minor can, for some, have devastating and lifelong impacts.

The research evidence, as well as the experience of mental health professionals, also suggests that the assumption the law has made that the more serious the abuse the greater the harm is not always the case.

The Royal Commission has recently published a comprehensive report on Sentencing for Child Sexual Abuse in Institutional Contexts. Professor Arie Frieberg, Hugh Donnelly and Karen Gelb were engaged to undertake this research. The report examines sentencing law, practice, standards and principles.

A further issue explored in the report is whether the institution itself should be held criminally liable, in certain circumstances, for the sexual abuse committed by a person associated with that institution. The report can be accessed through the Royal Commission’s website.

Other research projects in relation to criminal justice issues we have commissioned include:

• The impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases;
• The use and effectiveness of alternative means or ‘special measures’ for complainants to give evidence in child sexual abuse trials; and
• The admissibility of tendency and coincidence evidence, jury decision making and the conduct of joint or separate trials.

To assist in our understanding of how jurors make decisions we are conducting a major jury research program, involving multiple mock trials. A trial has been filmed involving multiple counts with multiple complainants.

The film has then been edited to allow trials with varying numbers of counts or complainants and appropriate directions to be shown to jurors. The jurors’ deliberations have been both observed and filmed and are now being analysed.

This process will allow us to look at the different trial outcomes of joint and separate trials. The study will also allow us to consider and compare the relationship between jurors’ perceptions or misconceptions about child sexual abuse, as well as modes of jury deliberation.

The voice of children

The Royal Commission’s Terms of Reference require us to inquire into ‘what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts’. I know that this is a question that confronts many here today.

I have spoken on previous occasions of the power that the institution has had, in the past, to silence the child. While recognising that the sexual abuse of children remains an issue in contemporary times, there was a time in Australian history when the conjunction of prevailing social attitudes to children and an unquestioning respect for the 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.

We must ensure that in the future the institution does not silence the child. The institution must work to ensure that the child can be heard. Institutions must ensure that there is a mechanism available through which the children in their care feel comfortable reporting abuse.

This message was reinforced by another of our recently published research projects: ‘Taking Us Seriously: Children and Young People Talk about Safety and Institutional Responses to their Safety Concerns’.

Some key messages given by children and young people to the Royal Commission were that ‘some adults need to develop their skills and institutions need to better deal with some safety concerns’ and that ‘children and young people want to be involved in identifying and dealing with safety issues and believe that, in partnership with adults and institutions, issues such as child sexual abuse can be better dealt with.’

Those in positions of management in institutions have particular responsibilities. They need to ensure that there are rules and appropriate practices in place to govern the interactions their staff, and others associated with the institution, have with the children in their care.

Management should also ensure that those in responsible positions in the institution are trained to understand and recognise that abuse is occurring.

The Royal Commission is currently conducting a research project to identify and explore the elements that make an institution ‘child safe’.

Impacts

There are many changes which are already occurring in institutions as a consequence of the work of the Royal Commission. I can mention a few.

The Royal Commission has learnt that many institutions are already taking up training programs being offered by the private sector centred upon child safety.

Bravehearts have reported a significant increase in the number of participants in the workshops and training programs they conduct. In the 2010/11 financial year Bravehearts trained 375 people in how to better identify and respond to child sexual abuse and other harm.

The number of participants has increased in each year since 2011. In the last financial year Bravehearts trained 3,127 people. Bravehearts founder Hetty Johnson attributes this increase to the impact of the Royal Commission.

Similarly, Child Wise has seen a significant increase in training and child safety certification requests since the Royal Commission commenced its work. Child Wise provided training to 3,278 participants in the 2014/15 financial year. This represents around 25,000 hours of training.

Child Wise considers that the increase in activity and training, education and certification signals a shift within the community. That shift, they believe, is primarily the result of the increased focus in the community on child sexual abuse; that increased focus being attributable to the work of the Royal Commission.

Of course Bravehearts and Child Wise are only two examples of organisations conducting training of this sort. The Australian Childhood Foundation is also a major auditor and child safe trainer. ACF have reported that demand from organisations seeking accreditation under their safeguarding children program has spiked by more than 60%.

ACF are scoping a significant audit project with the Australian Sports Commission which oversees 62 different sporting codes.

The Australian Olympic Committee has also responded. 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 our work. A number of those institutions are represented here today.

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. 

During the public hearing into the Melbourne Response, the Catholic Church response to survivors in the Melbourne Archdiocese, Archbishop Denis Hart announced that he had appointed a former Federal Court judge to conduct a review of their process.

Sydney Archbishop Andrew Fisher ordered a review of the professional standards of the Sydney Archdiocese in May this year.

Following the release of the Royal Commissions’ case study report into the North Coast Children’s Home, the Anglican Diocese of Grafton 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]

I have been informed that the Uniting Church has reviewed its practices and policies to better identify and minimise the risk of children being harmed. The Church has also made changes to the manner in which it responds to survivors.

Changes are also occurring at the legislative level. 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.

These are encouraging signs.They indicate that the investment which the Commonwealth Government has made in the work of the Royal Commission is already bringing real change for the nation’s children.

There can be no doubt that the work we are doing has brought these issues to the forefront of everyone’s minds.

It is of fundamental importance that both governments and institutions resolve to accept the responsibility and apply the resources to bring lasting improvement in the lives of those who have been abused and more effectively protect children from the possibility of abuse in institutions in the future.

^{[1] https://sydneycatholic.org/people/archbishop/addresses/2015/2015522_1900.shtml
[2] http://www.graftondiocese.org.au/#!diocesan-news/cmem}