Findings From The Royal Commission into Institutional Responses to Child Sexual Abuse

 In Litigation & Dispute Resolution

On 15 December 2017, the wide-ranging Royal Commission into Institutional Responses to Child Sexual Abuse handed down its final report. The Commission was established in 2013 and has drawn national attention since that time. The establishment of a federal compensation scheme marks an initial attempt to offer restitution to victims, but there is yet more to be done.

During the 1990s and early 2000s, an increasing number of allegations came to light regarding child sexual abuse in religious and other institutions. Some of those allegations resulted in convictions, but the depth and breadth of the problem led many to call for a Royal Commission.

In November 2012, an explosive Lateline episode on ABC TV featured a former priest who claimed to have witnessed systemic cover-ups of sexual abuse within the Catholic Church. His claims were followed by similar allegations from a senior police officer and an increasing number of reports of clerical abuse. Some of the claims dated back to the 1950s, with evidence that the issue was on-going.

Two days later, on 12 November 2012, Prime Minister Julia Gillard announced that she would be recommending that a Royal Commission be formed to the Governor-General. The Commission was formally set up on 11 January 2013 and the six Commissioners were issued with Commonwealth letters patent. Each State then formally appointed the Commissioners under State laws to allow them to conduct their inquiry under their respective laws as well.

Although the Commission has, to date, made over two thousand referrals of individual cases to authorities, it was designed to look at the way institutions and entire systems have failed victims and to make recommendations for how to better protect children in the future.

While the Roman Catholic Church has been particularly implicated in the allegations, the Terms of Reference for the Commission allows the Commissioners to look at “any private, public or non-government organisation that is, or was in the past, involved with children, including government agencies, schools, sporting clubs, orphanages, foster care, and religious organisations”.

Current Status
By the time Cardinal George Pell appeared in an Australian court on 26 July 2017 to answer charges of historic sex abuse, it was clear that the ramifications of the Commission have been significant for victims and perpetrators alike.

As of 1 August 2017, the Commission has taken 39,947 calls, 23,979 letters and held 7,213 private hearings as well as formal submissions from a wide range of organisations and individuals. It con-tinues to encourage people to share their story, giving victims the chance to talk after years and even decades of being silenced.

State Compensation Schemes
On 5 November 2016, the Federal Government announced a compensation scheme for victims of institutional abuse, which will commence in early 2018 subject to the passing of the legislation. Vic-tims will be entitled to up to $150,000 each, with the costs for the Commonwealth alone being es-timated at between $570 and $770 million. This followed a recommendation released by the Commission which outlined 99 recommendations to help victims on an ongoing basis. At its heart was a national redress scheme worth up to $4 billion.

The system is opt-in for the States and Territories, who have been encouraged to contribute re-sources and money to bring the scheme in line with the official recommendations. The Federal Government has no power to force an opt-in for the States.

As at the time of writing, South Australia is refusing to opt into the scheme. The Government feels that their financial liability would be substantially increased by doing so. Currently, victims must make a claim under the Victims of Crime Act 2001 (SA). They are only eligible to do so if the perpetrator has been convicted of the crime. Many people have been victimised by people who were never prosecuted, and in many cases those perpetrators have since died, leaving the victims without remedy. The recommendation of the Federal Commission is that a conviction should not be a necessary step to allow victims to obtain compensation, and eligibility is instead determined by the occurrence of sexual abuse in an institutional setting.

Even for those who are eligible, claims for offences made under the Victims of Crime Act since September 1, 1990 are capped at $50,000 and for offences between 1969 and 1974 the limit is $1000. The proposed scheme would open the door for victims who have previously received these small amounts to make a further claim.

Commonwealth Institutions
If the abuse occurred in a Commonwealth institution, the Scheme will provide redress in the form of:
Access to counselling and psychological services
Financial compensation of up to $150,000
A direct personal response from the institution responsible if requested.

What constitutes a ‘Commonwealth institution’ is yet to be clarified, and is unlikely. It is likely to in-clude a circumstance where the Commonwealth employed children, delivered activities for children, or delivered state functions in the Australian Capital Territory and the Northern Territory before self-government.

Being in receipt of Commonwealth funding does not make an institution a ‘Commonwealth Instituion’ but if the funding came alongside a measure of control or management by the Commonwealth funding provider, that institution may be partially responsible for the abuse. There are also examples where a survivor may have been in a state-based institution, such as an orphanage, due partially or wholly to an agreement between the Commonwealth Government and another country. The issue raises a number of interesting legal points which will need to be clarified through the courts once legislation is passed.

Initially, only the Northern Territory Government, Australian Capital Territory Government, and non-government institutions established in a territory will be able to opt into the Scheme and provide redress to survivors they are responsible for.

States will be able to participate in the Scheme after they refer sufficient powers to the Common-wealth. Non-government institutions in states including churches, charities and other community institutions will then also be able to participate in the Scheme.

Currently, there is no other avenue by which South Australian claimants can access the Federal scheme if South Australia does not opt-in. Whether or not this will change in the future is still to be determined.

Statute of Limitations
Another recommendation from the Commission was to scrap the statute of limitations as it currently applies to child victims of sexual abuse. Historically, victims were subject to the same statutory time limits as other personal injury victims: that is, they were limited to a three year period after the incident, or by their 21st birthday if the incident occurred while they were a minor.

The Commission’s recommendations had regard to the fact that child victims of abuse often do not report for years or even decades after the abuse has ceased. The reasons are complex and include common feelings of shame, family loyalty, ongoing trauma or a lack of trust in the systems to which they are expected to report.

To date, legislation has been enacted to set aside the statute of limitations in sexual abuse cases, Victoria, New South Wales and Queensland, with a bill tabled in Tasmania on 1 November and a similar bill coming before the Parliament in Western Australia on 22 November.

In South Australia, a private Member’s Bill was introduced by Liberal MP Vickie Chapman but has not progressed, leaving South Australia as the only State which has no current plans to abolish the time limit.

Johnston Withers Involvement
Johnston Withers has long represented the interests of victims of childhood sexual abuse. We have a proud history of assisting victims to receive the compensation to which they are entitled, and we believe that a national compensation scheme with state involvement would be an appropriate outcome.

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