Chapter 8 - Reparation and redress schemes
In my heart I feel if
there is to be real peace for myself and others like me, I expect some
acknowledgment, some justice...from society. I would like to be treated
respectfully and fairly - to be given a fair hearing, the Australian "fair
go"...Lawful institutions, whether under the State or Federal Government,
the Churches or different religious organisations, play a legitimate role in
creating justice for victims. There is no simple way for society to shirk the
responsibility of recognising the torture and pain that was inflicted upon
Measures of reparation
There was much discussion in evidence during the
inquiry on the means by which reparation for past wrongs experienced by care
leavers could be made. A variety of mechanisms were canvassed and these
legal options through the courts;
various redress/reparations schemes, both
overseas and in Australia;
internal Church-based redress schemes;
redress through victims compensation tribunals;
establishing a Royal Commission; and
significantly boosting and enhancing dedicated
services for care leavers.
options are discussed below. The provision of services for and acknowledgement
of care leavers in terms of offering redress are discussed in later chapters.
One option open to victims of abuse whilst in
institutional care is to pursue compensation through the civil court system.
Some care leavers indicated a clear desire to pursue civil actions for damages
for institutional child abuse. One care leaver stated:
Why can't I have my justice? I believe that if I had my justice
in a court room then maybe I could get on with my life...I want my day in court
with these people, they [the church] are liars and will say anything just to shut
you up. (Sub 219)
There are a number of potential advantages that the
civil system offers. These include:
the openness of the process and the resultant
'public record' - this may also play a role in prevention and deterrence;
the fact-finding capability of the process;
the ability to hold defendants publicly accountable
for the harms suffered;
the larger amount of financial compensation
available - generally the financial compensation available under redress
schemes is much less than would be awarded if the person were successful in a
civil action; and
as the judicial system is accorded a certain
legitimacy and authority, a successful outcome might be considered a greater
'victory' than through alternative means of resolving claims.
A number of Churches and religious Orders have entered
into settlements as a result of the commencement of legal action by victims.
The Christian Brothers
have entered into many out of court settlements with former residents of homes
operated by the Order in Victoria
and Western Australia. Settlements
of this nature have been a feature in the USA,
Canada and Ireland.
In August 1993, civil legal action was begun in the
Supreme Court of NSW against 21 Catholic Church defendants, though proceedings
were eventually discontinued against all except the Christian
Brothers. The approximately
250 plaintiffs were mostly, but not exclusively, former child migrants, of
Christian Brothers' homes in Western Australia. The case involved complex legal
issues and included matters of jurisdiction, statutes of limitation, and lack
of corroborating witnesses. Most events under consideration took place in the
1940s and 1950s.
While the Christian
Brothers accepted that some individual
Brothers had physically and sexually abused some of their students, they did
not accept the accusation that there had been neglect or dereliction of duty at
the level of the Order's administration. Consequently, an out of court
settlement was reached in August 1996. The Christian
Brothers provided $5 million of which $1.5
million was for the plaintiffs legal costs and $3.5 million was placed in an
independent trust to be distributed, against agreed criteria, to the plaintiffs
who signed on.
Other religious Orders have also entered into out of
court settlements. In 2002 the St John of God Brothers reached an out of court
settlement of $3.64 million with 24 intellectually disabled men who had
been sexually abused while in their care. Individual compensation payments
ranged from $50 000 to $400 000. Broken Rites stated that previously,
individual victims of this Order received financial settlements 'with
ridiculously small amounts of money being paid, and complainants being required
to sign secrecy agreements'. Various
other religious orders have provided confidential settlement payments to ex-residents.
The Salvation Army has also provided compensation
payment to ex-residents. One payment to a former resident of Nedlands Boys Home
in Perth was not revealed but was
understood to be 'modest'. Slater and Gordon, which handled
the claim, is negotiating claims on behalf of other state wards. Other
settlements have included $10 000 paid to a former resident of the
Salvation Army's Toowong home in Queensland.
In another case the Salvation Army provided compensation and apologies to up to
ten ex-residents of its homes in Victoria.
Some care leavers who have been through the court
system expressed frustration and disappointment with the legal system and a
sense that justice had been denied.
The following submission relates to the attempts made by myself
as Guardian ad Litem for [name]...to initiate legal proceedings leading to a
remedy, over a period of more than a decade. These attempts have all ended in
failure. (Sub 281)
My case has been through our so called judicial system only to
be let down by the legal crap that was so unbelievable that I reverted back
into my world of hatred and depression. (Sub 161)
Evidence to the inquiry highlighted the specific
difficulties faced by people who have suffered abuse within institutions in successfully
pursuing compensation through the civil court system. The major
impediments include the limitation periods, establishing liability; the
adversarial nature of the system and the cost of litigation. These issues are
discussed below. The Churches have also used their considerable financial
resources to thwart cases going to judgement.
Statutes of limitations represent the primary hurdle -
and it is the one that is insurmountable for many claimants. One care
leaver stated that:
To date no-one has gotten over the Statutes of Limitations...In my
case I was instructed from not seeking damages for the matters of my false
arrest, imprisonment, trespass, and theft of my child because it was conveyed
to me that because I took too long to bring an action and that I would be
barred by the limitations argument because the State could not defend itself
against the multiple heads of damage, and I would be penalised by the court by
bringing such an action. In other words they could penalise me for the many
crimes committed to me by the state. (Sub 221)
All Australian States have Limitations of Actions
legislation which limit the time within which proceedings can be issued in
relation to claims for damages for personal injuries. Limitation legislation is
intended to prevent a plaintiff from taking an unreasonable length of time to
commence proceedings to enforce a right or rights claimed by the plaintiff.
Actions for personal injury in Queensland,
Victoria, South Australia,
Tasmania, the ACT and the Northern
Territory must generally be commenced within three
years from the date on which the cause of action arose. In NSW, in general
terms if the cause of action for personal injury accrued before 6 December 2002, the limitation
period is three years. After this date, two limitation periods apply, a three
year post discoverability limitation period, and a 12 year long-stop limitation
period. An action cannot be brought after whichever of these two periods
expires first. Similar rules of discoverability and long-stop periods apply in Victoria
on and after 1 October 2003.
In Western Australia the
limitation period for personal injury action is six years from the date on which
the cause of action accrues.
One submission noted that:
These statutory time limits place adult survivors of abuse in an
invidious position, because most will simply and quite normally be incapable of
bringing their action within the time set.
Provisions relating to minors vary among jurisdictions.
As a general rule, a child is presumed to be under a disability. Thus, a
child's right to sue endures until the child reaches their majority and then
the applicable limitation period starts to run. Once the limitation period has
expired it may be possible for a person to ask a court to extend the limitation
period. There have been recent changes to the law regarding minors in some
jurisdictions. In NSW and Victoria, where a child who is in the custody of a
capable parent or guardian sustains personal injuries then they have three
years in which to commence proceedings through a parent or guardian without the
traditional concession of time not running until the plaintiff attains legal
majority. Special rules apply if the child has been abused by close relatives
or close associates.
In 2003, South Australia
under the Criminal Law Consolidation
(Abolition of Time Limit for Prosecution of Certain Sexual Offences) Amendment
Act 2003 removed a three year limitation period for the prosecution of
sexual offences committed between 1952 and 1982. In the period from 1952 and
1982, prosecutions for sex offences had to be commenced within three years in South
Australia. The Criminal Law Consolidation (Abolition
of Time Limit for Prosecution of Certain Sexual Offences) Amendment Act operates in that window period of 30 years to remove
the immunity from prosecution.
In June 2004 nine people were arrested by the South
Australian Police paedophile taskforce in relation to child sexual abuse
allegations. Some of the alleged actions occurred in the 1950s and 1960s. Pending
prosecutions were made possible by the recent changes to the statute of
limitations legislation in South Australia.
The nature of the injuries suffered by potential
claimants in cases of institutional abuse means that it is often decades after
the actual abuse has occurred before individuals have the psychological
fortitude to pursue these claims - the victim/survivor might experience shame
and embarrassment; might blame him or herself; may not realise the connection
between their injury or illness and the abuse suffered at the hands of the
defendant; or may need a considerable amount of time to come to terms with the
The nature of the acts experienced may also mean that
the trauma associated with them may not manifest itself until later in life. This
inquiry and the inquiry into child migration highlighted the fact that often
decades pass before victims are able, or in some cases 'forced', often through
a complete mental breakdown, to deal with crimes perpetrated upon them. It is
as if they leave care, 'get on' with their lives but in the end have to face
It took me 23 years to start dealing with [my abuse]. The past
finally reared its ugly head and tormented me to the point that I was a danger
not only to myself but to society. (Sub 161)
My life of trauma is getting worse as I grow older. (Sub 20)
I'm spending the second half of my life sorting out the first
half. (Sub 196)
The nature of the acts are also different from typical
tort actions. Dr Mathews
of the Law School
at QUT noted that in relation to acts of child sexual abuse:
The acts, which also constitute criminal acts are particularly
abhorrent and cause longstanding damage...The acts involve a clear abuse of
power. Physical and psychological coercion is required to perpetrate the
abuse...These cases usually involve a series of acts continuing over an extended
period, producing immediate trauma that then intensifies.
The nature of the acts rebuts any claim that the time limit is a
justifiable guard of repose. At a moral level, a perpetrator of child abuse
does not deserve the protection of time to escape civil trial. The survivor has
had to bear the consequences of the abuse since the events. The perpetrator has
done nothing to deserve the freedom to carry on with his or her life without
having to face consequences for their acts. For the same reasons, the public
interest argument is also irrelevant. There is no public interest in permitting
the evasion by child abusers of civil legal consequences.
Similar arguments can be made in relation to acts of
child physical abuse in that they are criminal acts and often cause
longstanding damage. The acts involve a clear abuse of power with physical and
psychological coercion used to perpetrate the abuse. Cases of physical abuse
usually involve a series of acts continuing over an extended period of time
with consequent long term psychological and emotional effects, as in cases of
sexual assault. Studies have shown that adults who have experienced childhood physical
abuse display symptoms that parallel those who experience child sexual assault.
Submissions also considered the argument that delay in
bringing proceedings may unfairly prejudice a defendant's ability to obtain a
fair trial. Dr Mathews
argued that the legal system possesses adequate means to deal with this
possibility through the usual procedures of the civil pretrial and trial
process, costs awards and suppression orders. The plaintiff retains the onus of
proving on the balance of probabilities that the events occurred. Moreover, it
is the courts' duty to make judgments based on the credibility of witnesses and
the import of any other evidence, and courts perform these judgements on a
A solicitor, who is involved in pursuing claims on
behalf of institutional abuse victims, suggested that a not-for-profit legal
centre should be established to represent cases such as these who, although
barred by State statute, should be entitled to bring or threaten action against
perpetrators be they an institution or governments. Such a centre could operate
along similar lines to existing legal centres - 'run in a business like
fashion, seeking to be self supporting but acting without regard to profit from
any one case but on the basis that but for the States Limitations Acts the
child has a good and provable compensable damages and case'.
Submissions argued that in cases of institutional abuse
the better analogy is with criminal conduct, not tortious conduct. For example,
the acts committed in cases of child sexual assault are criminal offences and
in general, limitation statutes do not apply to criminal proceedings.
Each jurisdiction in Australia
now has a provision that allows for a limited extension of time in certain
circumstances for civil claims. The circumstances in which such extensions will
be granted are, however, extremely restrictive in most jurisdictions. Generally
a number of factors must be considered before leave can be given to issue
proceedings out of time. These include the reasons for the delay, the prejudice
that the defendant has suffered by the delay and the merit of the substantive
Applications for an extension of time within which to
issue proceedings are costly (in the range of $10 000 to $15 000 for
each side) and there is no guarantee that leave to issue proceedings will be
granted. If the application is unsuccessful, the applicant in addition to his
or her own legal costs will be liable for the other side's legal costs.
A number of overseas jurisdictions have addressed the
limitation barrier by implementing legislative measures specifically designed
for cases of adults abused as children.
Some overseas jurisdictions have eliminated limitation
periods for all claims of child abuse. Statutes in several Canadian provinces, such
as British Columbia and Saskatchewan, have abolished time limits for civil
actions based on child abuse, giving adult survivors of abuse unlimited time in
which to institute proceedings.
Other jurisdictions have imposed moratoria for certain
types of actions. In California
the limitations period for certain child sexual abuse claims was suspended for
one year on 1 January 2003.
The types of actions include actions against persons or entities who owed a
duty of care to the plaintiff, who knew or had notice of any unlawful sexual
conduct by an employee, and failed to take reasonable steps and to implement
reasonable safeguards to avoid future acts of unlawful sexual conduct. This has
allowed civil proceedings against the Catholic Church for sexual abuse allegedly
committed by priests to be launched. In July
2004 pre-trial hearings commenced involving more than 150 lawsuits against
Catholic dioceses in northern California. Professor
Graycar and Ms Wangmann of the Law Faculty of the University of Sydney noted
that these types of measures are important 'as they recognise the very real
difficulties that people who experienced abuse as a child encounter when trying
to fit within a legislative requirement that requires them to acknowledge and
speak out about their abuse within a certain time period'.
Even if proceedings are brought within time or an
extension within which to issue is granted, claims for damages face significant
other impediments. In order to be entitled to damages a claimant must show that
he or she has suffered injuries as a result of the negligence of another party.
To prove negligence, a claimant must establish that they are owed a duty of
care and that there was a breach of duty of care which has resulted in injury.
In cases of sheer neglect, that is, a failure to
adequately feed, clothe, nurture or educate it is often difficult to show
'injury' per se which involves proving physical damage or a diagnosable
psychiatric illness. Where injury has occurred, defendants often argue that it
is not the abuse that has occurred whilst the children were wards which has
caused the injury. Defendants often argue that these children were already
significantly physically or psychologically damaged and therefore it is
difficult to identify the cause of any ongoing symptoms, loss or damage.
Claimants often face difficulties in determining who to
sue. Very occasionally the actual perpetrator of violence or abuse is sued, but
even if the claim is successful it is unlikely that the individual will have
the capacity to pay damages. Many victims of institutional child abuse also see
the organisations, or the governments that facilitated their
institutionalisation as responsible for their abuse. Proving direct or vicarious
liability on the part of organisations, such as churches or the government has
proved difficult in Australia.
A recent case decided by the High Court in 2003, Lepore, Rich and Samin, left the matter open.
One submission noted that when cases are brought
against organisations, the organisation will often argue that it did not know
the conduct was occurring and will seek to blame the individual abuser. Given
that many of the claims are brought years after the event, it is often
difficult to show that the responsible authority either knew or should have
known the abuse was occurring.
Various government departments and religious
institutions will also argue that the conduct must be judged according to the
standards of the time. For example, that corporal punishment was more
acceptable in the 1940s or the 1950s than now. Often the abuse will relate to
illegal conduct, particularly with reference to sexual abuse. In these
circumstances, the employing agency will argue that they cannot be held liable
for the illegal conduct of their employees or agents.
Submissions noted problems in suing religious
institutions. One submission noted that many churches and religious groupings
are not legally incorporated. If this is the case, the church will have no
legal personality that is distinct from its members and therefore there will be
difficulties for a person who wishes to sue in contract or tort. Some Catholic
religious orders have been organised in such a way that they are legally
incorporated for the sole purpose of the owning and disposing of property but
otherwise the Catholic church and its religious orders argue that they have no
more legal standing than, for example, a social group. These arguments have met
with some success in the courts and this inability to find an entity that can
actually be sued further aggravates the problems faced by those seeking
One possible solution to this problem would be to make the tax concessions that
Churches/charities can obtain a condition of incorporation.
The Committee raised this issue with Mercy Community
Services. They indicated that its corporate structure, while designed to
continue the mission of the Sisters of Mercy, may as a consequence serve to
limit the liability of the organisation:
It may be an offshoot of it or a consequence of it that the
disadvantages you see for people who are aggrieved could occur...The corporate
structure as such is like any other corporate structure. The canon law side of
it was so that the assets, the capital goods of the Sisters of Mercy, could go
to a group so that they remain church goods and that they are not alienated
from the church. Obviously, in civil law it was so that the entity could act
within Corporations Law...it is not the purpose but it may be one of consequences
of the structure.
In addition, where wards of the state have been placed
in institutions run by religious groups, a process of 'denial' of responsibility
occurs with the State attempting to place responsibility with the church and
The adversarial nature of court proceedings creates a
number of difficulties for people giving evidence. The difficulty is
exacerbated for people who are recounting traumatic events from their
childhood. Victims often find the process of testifying and facing
cross-examination painful, as it brings back memories and opens old wounds.
Victims often complain that they feel as if they are the ones on trial because
they are forced to 'prove' what happened to them.
The adversarial nature of traditional civil litigation,
particularly as compared to redress mechanisms, mean that they are an unlikely
forum for the promotion of acknowledgement, apology and reconciliation, as it
encourages defendants to deny, not acknowledge, responsibility. This lack of
scope for an apology is compounded by the process of challenging evidence that
often involve personal challenges by the defendant about the plaintiff, his or
her lifestyle and the substance of his or her claims.
Another significant impediment faced by potential
claimants is the cost of litigation. One submission noted that a claim in the
district courts or various State Supreme Courts, where these proceedings are
issued, can cost 'many tens of thousands of dollars'. Submissions
also pointed to the unavailability of Legal Aid for anything other than
criminal law cases.
One submission noted that a religious Order offered to
settle a claim for $50 000 suggesting that 'I should accept what the Order
was offering because to take legal action would mean it would cost me a great
deal of money'.
Another submission noted that 'although there is overwhelming evidence and in
some cases the facts speak for themselves, they [the victims] are not in a
position to finance any legal action'.
Submissions commented that both governments and the
religious groups defend the actions vigorously. One submission noted that where
proceedings are issued both the State Governments and the Churches 'brief
lawyers from the top end of town who spend a fortune in strike out applications
and other devices to delay a claim and to increase costs'.
Broken Rites noted that with respect to the Catholic
Where a civil claim is initiated outside of the Church's own
process(es), the game plan appears to be one of protecting the church's estate
and assets at any cost. Broken Rites is aware of a number of cases where the
church has been prepared to pay massive legal costs in order to prevent the
case ever going to judgement, rather than meet the genuine needs of victims in
a realistic way.
Broken Rites stated that no claimant who has sought
financial compensation for psycho-social damage resulting from abuse by a
member of the clergy or religious of the Catholic Church has ever had his or
her case go to judgement in any court in Australia.
In respect of the Catholic Church in the United
States a number of large settlements have
been concluded with abuse victims. In 2003 the Archdiocese of Boston agreed to
pay US$85 million to settle more than 500 lawsuits from people who claimed they
were sexually abused by Catholic priests in the past. The settlement was the
largest publicly disclosed payout by an American diocese to settle molestation
charges. A series of new claims were reported against the archdiocese in 2004.
Numerous other Catholic dioceses have also concluded settlements with claimants
alleging sexual abuse charges, for example, the Seattle Archdiocese agreed to
pay US$8 million to settle charges against a former priest in 2003.
The criticism of the action of the churches is not
restricted to the Catholic Church. CLAN voiced a similar criticism of the
We watched the Four
Corners program "The Homies" in which the Salvation Army were
terribly regretful about what happened to the children in their homes and we
also know from first-hand experience through our members that they fight tooth
and nail through the courts using every measure they can to deny justice to
those same people that they say they have damaged and that they regret so
In addition to having to fund one's own legal case
there is also the risk, if the plaintiff loses, that they may be required to
pay some, or all of the defendant's costs, and this may well be an effective
deterrent in pursuing a civil action. Due to the socially deprived backgrounds
of most of the claimants, many are significantly disadvantaged financially and
do not have the resources to fight these cases.
There are also significant 'non-monetary' costs to
consider. There are often emotional costs involved in pursuing this type of
litigation, even if cases are successful. The emotional costs of being
unsuccessful, where this decision is likely to result from the limitation
period or the effects of the passage of time on the court being unable to
determine what took place and who is responsible, is also likely to be
considerable. The experience of one care leaver graphically illustrates this
The lodging of claims, appeals and counter appeals in interstate
jurisdictions has since appeared to have represented the focus of Owen's
life ...These have intensified his sense of victimisation and caused him to
assume he is either not believed or "fobbed off". In turn he has
single mindedly dedicated himself to battling legal systems and proving his
assertions without the assistance of clear family and Government welfare
institutional records and supports....For legal officers to suggest he was not
really a victim...because he asked to be assaulted, seems to be beyond Owen's
comprehension and in turn makes his sense of victimisation worse. (Sub
The Committee is of the view that reporting wrongdoing
should be encouraged, and that highly vulnerable whistleblowers who are
well-placed to expose crime, fraud, mismanagement or corruption should be
protected. There is anecdotal and other evidence that persons in religious and
charitable organisations are even more vulnerable than private or public sector
employees when it comes to challenging authority in their organisations,
because of almost absolute financial and employment dependence. Their
livelihood and old age care may be entirely reliant on the organisation
concerned. As it stands, the fear of intimidation and reprisals for speaking
out, through for example the withdrawal of financial support in retirement,
would be a strong deterrent.
The Committee considers that whistle-blower protection
is required for those religious and lay people wishing to disclose crime and
wrong-doing in their organisations, and especially the perpetrators of abuse
A number of commissions and committees of inquiry into
whistleblowing have been held since the late 1980s. Most of
these inquiries were directed to the needs of the public sector, but apply with
equal force to the profit and not-for-profit private sectors.
In the last two decades public sector whistleblowing
schemes or Acts have been established by all governments in Australia.
Existing informal schemes for private sector whistleblowing have recently been
reinforced by statute for the private sector for the first time. In June
2004 amendments to the Corporations Act and to the Workplace Relations Act
advanced whistleblowing protection in the private sector.
The new private sector whistleblowing legislation is
neither ambitious nor comprehensive, and the limitations of the new legislation
have been remarked upon by a parliamentary committee.
Nevertheless employees who would otherwise remain silent for fear of losing
their jobs can now blow the whistle on corruption, crime and unlawful activity
in the private sector. A compensation and protection regime now exists to
safeguard their welfare.
The Committee strongly believes that what appears to be
the embedded practice of complicity in some churches, (or more accurately, some
parts of some churches), in concealing crimes against children, must be
addressed through extending whistleblowing legislation to unincorporated
associations and the not-for-profit sector. In this way, the religious, lay and
other employees could be an invaluable tool in bringing offenders to account.
How to ‘cover the field’ is the question. Religious and
charitable organisations are not necessarily homogeneous or unitary, and may be
diverse in structure with many independent and autonomous units.
Churches and religious associations can become
extremely complex entities with many sub-structures. Such structures were
explored by the Committee. A good
example of this intricacy is perhaps the Catholic Church. In its ‘Submission to
Board of Taxation on the Definition of a Charity’ the Church stated that ‘the
structure of the Catholic Church is complex and comprises of many entities’ so
As a consequence the Church comprises a wide range of different
legal entities: bodies corporate established by Act of Parliament, corporations
sole, companies limited by guarantee, companies limited by shares, incorporated
associations, trusts, funds, foundations, unincorporated associations, bodies
The complexity is similar in churches of other
denominations; however, it is possible to identify three predominant corporate
structures within churches and religious associations. Most of the churches and
religious associations in Australia
are organised as:
This complexity means that introducing whistleblower
protection that would cover the field for the not-for-profit, religious and charitable
sectors is not easy.
The main source of law governing unincorporated
associations is the common law. Hence, it will be difficult to establish a
whistleblower protection scheme utilising existing statutes. Whether
whistleblower protection can be achieved for an individual entity will depend
primarily upon the legal form the entity takes, not the question of whether the
entity is a not-for-profit or a charitable entity.
On a State level, the most promising approach would
seem to be targeting legislation dealing with charities, trusts and the
Associations Incorporation legislation. On a Federal level, the best target
seems to be taxation legislation, for example, the Income Tax legislation. It would seem that any legislation attempting
to cover the field should contain a clause that puts it beyond doubt that the
Commonwealth has the intention to cover the field to the exclusion of any State
The Committee considers that the desirability and
feasibility of introducing whistleblower legislation for the not-for-profit
religious and charitable sectors should be examined by the Commonwealth. The
intention of such legislation would not only provide protection and certainty
for those wishing to disclose contemporary matters but also for those who have
wanted to disclose past events and actions but have felt uncertain or
threatened in coming foreword.
Evidence to the Committee indicates that there are
considerable legal and other barriers faced by people who have suffered
institutional child abuse in successfully pursuing compensation claims through
the civil court system, or in having criminal action taken by the DPP.
The statutes of limitations have, in particular been
cited as a major obstacle to pursuing claims. Some submissions have argued that
statutes of limitation legislation should be amended to allow legal proceedings
at any time for victims of child sexual and/or physical abuse and neglect.
The Committee shares the concerns expressed in evidence
concerning the obstacles imposed by the statutes of limitations. It firmly
believes that alleged perpetrators of sexual and/or physical abuse should not
continue to evade prosecution by hiding behind the limitations of actions
The Committee commends in the strongest possible terms
the South Australian Government for removing the statutory limitation period in
relation to the prosecution of certain sexual offences. The Committee believes
that the South Australian example is a very positive development in that it has
opened the way for the possible criminal prosecution of perpetrators of sexual
offences in that State. It shows that effective action can be taken to remove a
major impediment to bringing perpetrators of child abuse to justice. The
Committee strongly urges that all States remove statutes of limitations for not
only sexual offences, but also for cases of physical abuse and neglect.
The Committee notes that the Commonwealth Government
has recently urged the States to review their statutes of limitations
legislation in relation to child sexual abuse offences. Senator
Ellison, the Minister for Justice and
Customs, stated that:
In relation to the common-law reform and the civil jurisdiction,
that of course is squarely within the state jurisdiction. In relation to
offences, we have made it very clear to the states and territories that we
believe that nothing should act as a bar to the prosecution of anyone for a
child sex offence. We will continue to maintain that position and influence the
states and territories in every possible way...we will continue to impress upon
them [the States] that we all have to address this in a
whole-of-governments - that is, federal,
state and territory - approach to the issue of child sex offenders. 
The Committee is concerned at the difficulties that
applicants have in taking civil action against unincorporated religious or
charitable organisations, and that this may be a device for deliberately
avoiding legal liability and accountability. The Committee considers that the
possibility of making federal tax concessions dependent on or linked to
incorporation is worthy of examination as a possible solution to this problem.
That State Governments review the effectiveness of the
South Australian law and consider amending their own statutes of limitation
legislation to achieve the positive outcomes for conducting legal proceedings
that have resulted from the amendments in the South Australian jurisdiction.
That in recognising the difficulty that applicants have
in taking civil action against unincorporated religious or charitable
organisations, the Government examine whether it would be either an appropriate
or a feasible incentive to incorporation, to make the availability of federal
tax concessions to charitable, religious and not-for-profit organisations
dependent on, or alternatively linked to, them being incorporated under the
corporations act or under state incorporated associations statutes.
That the Commonwealth Government examine the
desirability and feasibility of introducing whistleblower legislation for the
not-for-profit religious and charitable sectors.
Given the difficulties associated with pursuing civil
actions for damages for institutional child abuse and neglect, as described
above, evidence to the Committee argued that other approaches are required.
Alternative redress arrangements, through compensation schemes; internal Church
and agency-sponsored redress arrangements; and victims compensation tribunals
are now discussed. The Committee considers that these redress mechanisms should
be used in conjunction with legal remedies already available. In addition, the
need for a Royal Commission to inquire into a number of specific and disturbing
aspects of institutional abuse that came to light during the inquiry is also
Reparations - theory and overseas developments
There is increasing interest throughout the world on
the issue of reparations for past injustices and the role that such reparations
can play in reconciling particular aggrieved groups within nations with the
larger society. The issue of reparations however raises a number of fundamental
questions. What harms warrant reparations? How far back in history should one
go? Do reparations require a known victim and perpetrator, or can the present
economic and social conditions of a recognised group be causally linked to the
activities of an earlier dominant group or previous government? Even where a
past injustice has been recognised, how should reparations be effected? Should
loss be compensated in monetary terms, or some other form of restitution?
The Law Commission of Canada proposed a number of
criteria by which redress processes/packages may be assessed. These include:
Respect, engagement and informed choice - does
the process satisfy the values of respect and engagement? Does it offer the
information necessary for survivors to make an informed choice about
participating in the process?
Fact-finding - can the process uncover all the
important facts to validate whether abuse took place?
Accountability - do those administering the
process have the authority to hold people and organisations to account for
Fairness - is the process fair to all the
parties affected by it?
Acknowledgment and reconciliation - does the
process promote acknowledgment, apology and reconciliation in cases where abuse
Compensation, counselling and education - can
the process lead to outcomes that address the needs of survivors for financial
compensation, counselling, therapy and education?
Needs of families and communities - can the
process meet the needs of the families of those who were abused as children as
well as the needs of communities?
Prevention and public education - does the
process promote public education about institutional child abuse and contribute
to prevention? 
While reparations schemes vary they usually contain a
number of components including the provision of apologies/acknowledgment of the
harm done, counselling, education programs, access to records and assistance in
reunifying families. A common feature of redress schemes is also the
implementation of financial compensation schemes. While the design of the
schemes vary they have as a common goal the need to respond to survivors of
institutional child abuse in a way that is more comprehensive, more flexible
and less formal than existing legal processes.
International law and reparations
The right to reparations for wrongful acts has long
been recognised as a fundamental principle of law essential to the functioning
of legal systems. The obligation to provide reparations for human rights
abuses, especially gross violations of human rights, has more recently been
recognised under international treaty and customary
law, decisions of international bodies such as the United Nations Human Rights
Committee and the Inter-American Court of Human Rights, national laws and practices and municipal courts and
In 1989 the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities commissioned Professor
Theo van Boven
to undertake a study concerning the right to restitution, compensation and
rehabilitation for victims of gross violations of human rights and fundamental
freedoms. A final report, including proposed basic principles and guidelines,
was submitted in 1993. A revised set of basic principles and guidelines was
submitted in 1996.
The Van Boven report examined relevant
existing international human rights norms and decisions of international courts
and other human rights organs. The
report concluded that every state 'has a duty to make reparation in case of a
breach of the obligation under international law to respect and to ensure
respect for human rights and fundamental freedoms'. Van Boven
In accordance with international law, States have the duty to
adopt special measures, where necessary, to permit expeditious and fully
effective reparations. Reparation shall render justice by removing or
redressing the consequences of the wrongful acts and by preventing and
deterring violations. Reparations shall be proportionate to the gravity of the
violations and the resulting damage.
Van Boven synthesised the content of
reparations to include restitution, compensation, rehabilitation and,
satisfaction and guarantees of non-repetition. Restitution refers to measures
such as restoration of liberty, family life, citizenship, return to one's place
of residence and, return of property. These measures seek to re-establish the
situation that existed prior to the violations of human rights and humanitarian
law. Compensation relates to monetary compensation for any economically
assessable damage resulting from violations of human rights and humanitarian
law. Rehabilitation includes medical and psychological care as well as legal
and social services. Satisfaction and guarantees of non-repetition includes an
apology, including public acknowledgment of the facts and acceptance of
responsibility, and measures to prevent recurrence of the violations.
A number of significant international human rights
treaties create a general duty to make appropriate reparations for violations
of human rights. These include the International Covenant on Civil and
Political Rights, the International Convention on the Elimination of All Forms
of Racial Discrimination, Convention on the Rights of the Child, and the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
A number of overseas countries, such as Germany,
and South Africa,
have implemented reparations schemes in recognition of the rights of victims,
especially in relation to gross violations of human rights.
Redress/reparations schemes in overseas countries
A number of redress or reparations schemes have been
implemented in several overseas countries including Canada
and Ireland and
these are discussed below.
Redress packages in Canada
several provincial governments and the federal government have established
compensation schemes in response to situations where children were abused and
neglected in state-funded and state-operated institutions. The schemes
are a mix of provincially-based arrangements, which sometimes involve the
relevant Churches and federally-based schemes in the case of Indian residential
schools, which also involve the Churches.
The schemes include the Ontario Grandview Agreement,
the British Columbia Jericho Individual Compensation Program, the Ontario
Helpline Reconciliation Agreement and a redress scheme established in relation
to Indian children in residential schools. A number of official Canadian
reports and inquiries highlighted serious physical, sexual and emotional abuse
at many institutions over many decades in Canada.
The Grandview Agreement was a compensation agreement
negotiated with the Province of Ontario
in 1994 by a group of survivors of physical and sexual abuse in a girls’
detention centre - the Grandview School
for Girls. That agreement led to the creation of a process specifically
designed by the victim/survivors to deal with those claims of abuse.
As part of the Grandview process, those who signed the
agreement waived their right to sue at common law and were able to claim an
amount of up to CAN$60 000 depending on the types of injury they had
sustained. This is significantly less than the amount they might have received
had they sued successfully at common law. In addition to this limited financial
compensation, the Grandview survivors were eligible for services such as
counselling and other assistance such as tattoo removal (it was common in the
institution for the girls to tattoo themselves and each other). The
adjudication process was designed by the survivors’ group, in consultation with
their lawyers, and all adjudications were undertaken by women sensitive to
issues related to sexual assault matters. An evaluation of the Grandview Agreement
found that most women who went through the process found that it was helpful
Another redress package - the Jericho Individual
Compensation Program (JICP) - was established by the Government of British
Columbia in 1995 to compensate Deaf and/or visually impaired children who
attended the Jericho Hill
School for the Deaf. The
compensation program was established following an Ombudsman’s report that
detailed the abuse (including sexual abuse) experienced by children at the
School. While the parameters of the program, including the levels of
compensation and what harms would be compensated, were devised by the government,
the terms of reference for the program were devised in consultation with the
Deaf community and measures were put in place to ensure that personnel working
on the program were sensitive to, and aware of, the different cultural needs
and requirements of the Deaf community.
Compensation payments under the JICP ranged from CAN$3 000
to $60 000 (the average payment was CAN$35 000). In determining
claims the Panel had to be satisfied that there was a ‘reasonable likelihood’
that the claimant was sexually abused at Jericho
Hill School (a lesser standard than the more common civil standard - on the
balance of probabilities). The JICP received 365 claims for compensation, of
which 359 claims were validated. Ninety-five per cent of the people who had
their claims validated by the JICP accepted the settlement. A review of the
Program noted that many of the people who went though the Program found it
‘therapeutic’ in that it gave them an opportunity to tell their story and have
it validated. A number of the residents at Jericho
opted out of this compensation program and have instead elected to proceed
through the courts. This litigation is proceeding as a class action and has not
yet been finalised.
Another redress package was the Helpline Reconciliation
Agreement. This Agreement was devised as a ‘reconciliation model’ to ‘heal the
impact’ of the physical and sexual abuse experienced by former students at St
Joseph’s Training School for Boys and St John’s Training School for Boys in
Ontario. The agreement, established in 1993, was made between the Government of
Ontario and the Catholic Church authorities. It included an apology; a system
of submitting and validating claims; the creation of a fund to provide a
variety of support, medical and educational assistance to validated claimants;
a contribution to lost wages; a counselling service; a public record; and a
commitment of behalf of the participants in the Agreement to prevent child
In relation to the experiences of Indian children in
the Canadian residential school system, the Canadian Government is implementing
an alternative dispute resolution (ADR) process. In 1998-1999 the Government,
the churches and Aboriginal leaders commenced a process of investigating
non-adversarial dispute resolution processes as a way of dealing with claims
concerning the residential schools. As a result, a national dialogue was
conducted across Canada
and 10 pilot projects were established. It was intended that the ADR projects
would offer victims of the residential school system a more sensitive and
timely response to the claims than is afforded by litigation.
A review of the projects found some dissatisfaction by
survivors involved in the pilot projects - the ‘standards of the day’
requirement which survivors found ‘difficult to understand’; objections to the
application of Western, ‘white’ standards to resolving residential schools'
abuse cases; and the limitation of compensation to recognised causes of action,
effectively meaning that claims for language and culture loss would not be
compensated under the ADR projects.
The Canadian Government has recently introduced a
two-model dispute resolution scheme for Indian residential schools. The first
model deals with more serious claims of physical or sexual abuse over an
extended period. Under this model, award payments are comparable to what people
would receive in court settlements. The second model deals with less serious
claims. The approach under this model is less formal- claimants are not
required to lodge documents, and are not subject to the same sort of
questioning about their claims as under the first model. The amount of
compensation is also less - with the maximum amount set at CAN$3 500.
In response to allegations of abuse in orphanages,
industrial schools and other institutions the Irish Government has introduced a
number of measures to address the issue, including the establishment of the
Commission to Inquire into Child Abuse (the Laffoy Commission). Approximately
150 000 children went through residential institutions in Ireland
between the 1920s and the 1980s. It is estimated that as many as 100 000
of those have left Ireland,
mainly for the United Kingdom,
In 2001 the Government agreed to the introduction of a
compensatory scheme for victims of institutional abuse. The Residential Institutions Redress Act 2002 established this
compensation scheme. It is a no fault scheme for compensation for people who
experienced child abuse, which is very widely defined, when they were a
resident in an industrial school, reformatory, children's home or similar
institution. Eligible applicants must have suffered sexual, physical or
emotional abuse while in an institution and have suffered physical, psychiatric
or other injury consistent with that abuse.
The Act establishes a Residential Institutions Redress
Board (RIRB) that receives and assesses claims. The Act requires that the
processes adopted by the RIRB be as informal as possible. An applicant lodges a
written claim which provides evidence of his/her identity; proof that he/she
was a resident in a particular institution as a child; and evidence of the
injury that was suffered in that institution consistent with the alleged abuse.
These are the three criteria that must be met before the RIRB can make an
award. To receive compensation under the scheme, the person must not have
received compensation from a court or settlement. The alleged perpetrator does
not have to be criminally convicted. An application form must be completed and
submitted to the Board. Applications are processed within 14 weeks - this is
the minimum timeframe and dependent on the Board receiving all the necessary
documentation. The Board will obtain evidence from any person or institution
named in an application. Applications must be made to the Board by 15 December 2005.
The scheme is primarily funded by the State, however
the Catholic Church has agreed to provide ?128 million [$A218m] into the
compensation fund - in return the Church received indemnity for future claims
about past child abuse claims. The contribution by the Church has been
criticised as being too small, since the total amount disbursed under the
scheme could be close to ?1 billion. The Irish Auditor-General has estimated
that the amount of compensation awarded could be in the order of ?864 million [$A1 475m]
(based on an estimated 10 800 claims with each payment averaging ?80 000
The total value of awards (to December 2003) was ?42.4 million.
If the Board rules that an applicant is entitled to
redress, it may make an offer of settlement which the applicant can accept or
reject. If accepted, no further action is necessary; but the applicant cannot
seek other compensation through the courts. If rejected, the application will
then be heard by the Board at a hearing. Hearings, which are informal, are
closed to the public and are conducted by a panel of 2-3 Board members. Persons
and institutions named in the application can participate in the hearing.
If an applicant is not satisfied with the RIRB’s
determination of the claim or the amount of the award, it is possible to appeal
to the Residential Institutions Redress Review Committee, which can uphold,
increase or decrease the Board's award.
There are four heads of compensation: severity of abuse
and injury; additional redress; medical expenses; and other costs and expenses.
Awards of compensation by the RIRB are determined according to two scales. The
first scale, to assess the severity of the abuse, requires the RIRB to assess
four ‘constitutive elements of redress’ - the severity of the abuse; and the
three measures of injury resulting from the abuse; medically verified physical/psychiatric
illness; psycho-social sequelae; and loss of opportunity. After determining the
scaling for the severity of the abuse, the RIRB then turns to the second scale.
This scale provides for five levels of compensation: (1) up to ?50 000
[$A85 000]; (2) ?50 000 - ?100 000; (3) ?100 000 -
?150 000; (4) ?150 000 - ?200 000; and (5) ?200 000 -
?300 000 [$A513 000] - for the most severe cases of abuse. It is also
possible for an applicant to claim aggravated damages. The RIRB has made it
clear that aggravated damages will only be awarded in the most ‘oppressive or
outrageous’ of cases. The award may be paid in either a lump sum or
instalments. The payments that have been made to date have ranged from ?10 000
[$A17 000] to ?270 000 [$A461 000], with the average value of
?80 000 [$A136 000].
As noted above, an applicant who accepts the award
determined by the RIRB (or Review Committee) must then waive their rights to
pursue civil action against the same institutions or persons alleged to have
caused the child abuse that was the subject of the redress application. Potential
applicants who have already sought civil relief for the harm that they suffered
in a residential institution are not permitted to make a claim under the Act -
however, if the civil claim was rejected in an interlocutory proceeding or on
the basis of the statute of limitation - then those people may still make an
application to the RIRB.
The Board has received 3 900 applications (as at
In its 2003 Annual Report the Board reported that it had received 2573
applications and 587 applications have been determined (as at December
2003). Of these 587 cases, 535 compensation payments were made (see Table 8.1)
and 52 were refused because they did not fall within the framework of the Act.
The Board has received 100 applications from victims of abuse in
residential institutions in Ireland
who are now resident in Australia.
Table 8.1: Compensation Payments
Total Weightings for Severity
of Abuse and Injury/Effects of Abuse
Award Payable by way of
70 or more
? 200 000 -
? 300 000
? 150 000 -
? 200 000
? 100 000 -
? 150 000
? 50 000 -
? 100 000
Less than 25
Up to ? 50 000
Institutions Redress Board, Annual Report 2003, p.20.
Evidence to the inquiry indicated that the scheme is
generally viewed favourably by victims of abuse. One submission noted that:
The experience of claimants so far has been extremely positive.
Most importantly victims have been able to tell their stories in a non
threatening environment. The process is quick and it is fair.
Criticisms have, however, been made recently by some
victims in relation to the level of the awards made and the process itself -
some victims felt traumatised by the process and some felt they were not
'believed' by the Board. One witness
to the inquiry also noted that 'there is...perceived inadequacy about the awards
that are available under the scheme compared to some of the litigation. There
have been some recent cases where some claimants have received large court
Redress packages in Australia
A number of redress packages, including Government and
Church-related schemes have been implemented in Australia.
As noted in chapter 1, in August 2003 the Tasmanian
Government announced a compensation package in response to an investigation by
the State Ombudsman into past abuse of children while in State care.
Under the Tasmanian scheme, claims must first be made
to the Ombudsman. A review team investigates the claim, which includes record
checking and interviews. Part of the interview process involves determining
what the claimant wants from the process. Desired outcomes can include an
apology issued on behalf of the Department of Health and Human Services (DHHS),
official acknowledgment that the abuse occurred; assistance tracking lost family
members; access to their departmental files; professional counselling; payment
of medical expenses; or compensation. Completed files for each claimant are
referred to DHHS for further action if recommended. An Independent Assessor of
claims of child abuse has been appointed. The Assessor's role is to record
settlements reached between DHHS and claimants against the referrals made to
the Department by the Ombudsman; and to receive referrals from the Department
on all matters which have not reached settlement, in which case he will
undertake a review and, where appropriate, an assessment of an ex-gratia
payment. While the maximum amount for individual payments is $60 000 the
Assessor can recommend that the government pay a greater sum in exceptional
The DHHS has conducted some 246 interviews (as at June
2004) to determine if there is sufficient evidence to support a claim of abuse.
No compensation claims/ex gratia payments have been paid to date by the
Independent Assessor - the first claims are expected to be paid by the end of
2004; however 25 claims have been referred to police for investigation.
In response to the Commission of Inquiry into Abuse of
Children in Queensland Institutions (Forde Inquiry), the Queensland Government
established a package of measures to assist former residents of Queensland
institutions. This included the establishment of the Forde Foundation in 1999.
The Foundation, which is a charitable trust, distributes monies to former
residents of these institutions. The trust provides assistance for education,
health, family reunions and the basic necessities of life. Funding is also
provided for counselling services and a range of support services. Other
measures included action to improve access to records and the issuing of a
formal apology in conjunction with the responsible Churches. Further details of
these measures are discussed in chapters 7, 9 and 10.
During the inquiry there was considerable criticism of
the Queensland Government's reluctance to provide monetary compensation to
victims of institutional abuse. Victims of
abuse in Queensland institutions
have presented the Queensland Government with a Charter for Redress calling on
the government to deliver 'justice and dignity' to victims of institutional
abuse, including monetary compensation and restitution. The Charter
for Redress calls on the Queensland Government to:
accept its moral and legal responsibility for
the pain and suffering of people who have experienced abuse;
acknowledge that abuse victims should be treated
with compassion and dignity, and are thus entitled to prompt redress;
explore models of redress suitable in the
Queensland context, including redress
models in Tasmania and overseas;
establish guiding principles to enable abuse
victims, the government and the Churches to work together;
amend judicial and administrative arrangements
to enable victims to obtain redress including financial compensation;
acknowledge that redress includes rights to
reparations, compensation and restitution; and
respect the rights of individuals to their own
pathways for healing.
The Forde Inquiry recommended that the Queensland
Government and responsible religious authorities 'establish principles of
compensation in dialogue with victims of institutional abuse and strike a
balance between individual monetary compensation and provision of services'
The Queensland Government's position is that the
establishment of the Forde Foundation and the provision of counselling and
other support services provides this 'balance' in that services are provided
'to support former residents in rebuilding their lives'. The Government argued
that any claims for monetary compensation 'would need to proceed through normal
The Forde Foundation noted, however, that there is
common expectation among ex-residents that compensation should be provided by
...in the absence of any other form of redress, there is a
misperception that the Foundation offers compensation. The amounts able to be
disbursed by the Foundation fall a long way short of any form of fair
compensation. This is confusing and in some cases humiliating for applicants,
who believe that they are receiving compensation. There is a sense of, "Is
that all I get?"
The 2001 report of the Forde Implementation Monitoring
Committee also argued the need for the government to provide compensation. The
report stated that:
The existence of the Fund does not address the principle of compensation underlying recommendation
39. The Forde Foundation was not
established to pay compensation to former residents. It was intended to provide
support to them...In this sense the Fund's role - while valuable - is in truth
more concerned with the provision of services as required in recommendation 40,
than it is with the compensatory spirit of recommendation 39.
A number of Churches and agencies have implemented
redress packages in relation to victims of abuse in institutional care and
other settings, such as parishes. These redress schemes usually involve the
issuing of apologies, the provision of counselling and other support services
and, in some cases, compensation payments. Further details are addressed later
in this chapter.
In 2003 the Catholic Archdiocese of Adelaide provided
an unconditional $2.1 million compensation package to 34 families of intellectually
disabled boys who were sexually abused by a bus driver at a Catholic school for
the intellectually disabled. The compensation package ranged from $50 000
to $100 000. The package does not contain confidentiality clauses and
recipients do not have to waive their rights to take civil legal action against
the Church for compensation. The Church's payment would, however, be offset
against any damages awarded in any future successful civil action.
Monetary compensation - the
As noted above, the Tasmanian Government has recently
introduced a compensation scheme for victims of abuse while in State care.
Several Churches and agencies also provide monetary compensation as part of
their redress packages. In relation to the Stolen Generations, the Bringing them home report recommended
that the Council of Australian Governments (COAG) establish a joint national
compensation fund to provide monetary compensation for the victims of the
removal policies involving indigenous children. The report argued that a Board
should be established to administer the fund and that compensation procedures
adopted should be non-confrontational and non-threatening. The report argued
that the major church organisations which played a role in this process should
also be 'encouraged' to contribute to the fund. Monetary
compensation has not, however, been provided by governments in the case of the
Stolen Generations nor in the case of former child migrants.
The issue of monetary compensation remains a
contentious, and possibly the most contentious issue, of all the possible
reparation measures. A number of different approaches may be taken in awarding
monetary compensation. Awards can either be based on an individual, needs-based
approach - this may be done on a case-by-case basis, or based on various scales
and categories of harms experienced - or on a predetermined award per person
that offers general compensation to all members of an aggrieved group.
Individually-based awards may exclude certain categories of individuals who are
unable to prove or explain their situation and forces victims to endure further
pain through the requirement to prove the severity of their past experiences.
An alternative approach is to establish a predetermined
single amount of compensation, inclusive of all harms suffered regardless of
the individual degree of harm and need. This approach acknowledges the
injustices of the experiences suffered, and offers justice and relief to
victims collectively. Such an approach is likely to limit the time, costs and
administration involved in claims and payments and is a model likely to reach
all victims, at least to some extent.
Ideally, the funding
of monetary compensation schemes should be provided by all responsible parties,
including individual perpetrators if still alive. Dr Buti of the Murdoch
University School of Law has noted, however, that governments and other parties
'are reticent in saying yes to reparation funding because of concern over the
quantum of funding required'. Dr
Buti suggested, however, that this concern
may be lessened if liability is spread over the various responsible parties. In
the context of the Stolen Generations the responsible parties would be the
State Governments and the churches, who administered most of the missions and
homes and the Commonwealth Government, which had a role in the removal
policies. Individual perpetrators should also contribute to the scheme. Dr
Buti argued that individual, governmental
and organisational liabilities should be assessed, and based on their
proportionate liability, the responsible parties would incur varying costs.
In creating a comprehensive reparations scheme, party
contributions must be assessed with respect to liability and responsibility;
ability to pay and funding available; amounts already contributed; services
provided; and whether public acknowledgment and apology has been made.
Liability of parties should be negotiated and determined during establishment
of a reparation scheme. All responsible parties should contribute funds to a
scheme or part thereof based upon their responsibility and surrounding factors.
suggested that the advantage of including all the various parties in a
comprehensive reparations scheme is that it has a greater chance of achieving a
positive outcome by reducing the individual financial strain on each party. It
may also have a psychological effect by spreading the 'blame' across the board
rather than targeting one party. In addition, with a greater number of
contributors there is a greater potential funding pool, which increases the
chances of obtaining adequate funding for a comprehensive reparations scheme.
The Committee believes that the Commonwealth Government
should establish a national reparations fund for victims of institutional and
out-of-home care abuse. The Committee believes that, while no amount of money
can adequately compensate victims for the pain and suffering experienced while
in institutions and other forms of care, monetary compensation can go some way
towards acknowledging past abuse and affording a sense of justice and closure
for many victims.
The Committee acknowledges that while monetary compensation
can compensate victims to some extent it is unlikely to achieve healing for many care leavers, so other forms
of redress, especially counselling is important. The Committee addresses
counselling and the provision of other services in chapter 10.
The Committee does not have a definitive view as to the
amount of reparations that should be payable under the scheme, but believes
that the reparations should be capped at an appropriate level. As noted
previously, a maximum amount of $60 000 per claimant is payable under the
Tasmanian Government's scheme, and similar amounts are payable under several
schemes operating in Canada.
Under the Irish Government's scheme the payments that have been made to date
have ranged widely with an average value of
?80 000 [$A136 000].
The Committee believes that the scheme should be funded
by contributions by the Commonwealth and State Governments and the Churches and
agencies directly involved in the implementation and administration of
institutional and out-of-home care arrangements. The Committee considers that,
while the Commonwealth did not have a direct role in administering
institutional care arrangements, it should contribute to the scheme as an act
of recompense on behalf of the nation as a whole. The Committee believes that
State Governments should contribute as they were directly involved in the
administration of institutional care arrangements. The Committee also firmly
believes that the Churches and agencies should contribute to the scheme to
share the cost burden and as a form of acknowledgment of their collective role
in the failure of their duty of care.
The relative contribution of the various parties to the
scheme should be based on their proportionate liability which, as discussed
previously in this chapter, should take into account such factors as the
relative roles of the respective groups in the provision of institutional care;
their ability to pay; and the degree to which they are already providing
compensation or funding services for care leavers.
The Committee believes that a board should be
established to administer the scheme and that processes to establish claims
should be non-adversarial and informal with the aim being to settle claims as
expeditiously as possible. The Committee considers that in determining claims
the board should be satisfied that there was a 'reasonable likelihood' that the
claimant was abused - a lesser standard than the more common civil standard -
on the balance of probabilities. The Committee considers that the introduction
of this scheme should not preclude victims from pursuing civil claims through
the courts as an alternative.
That the Commonwealth Government establish and manage a
national reparations fund for victims of institutional abuse in institutions
and out-of-home care settings and that:
the scheme be funded by contributions from the
Commonwealth and State Governments and the Churches and agencies proportionately;
the Commonwealth have regard to the schemes
already in operation in Canada, Ireland and Tasmania in the design and
implementation of the above scheme;
a board be established to administer the scheme,
consider claims and award monetary compensation;
the board, in determining claims, be satisfied
that there was a 'reasonable likelihood' that the abuse occurred;
the board should have regard to whether legal
redress has been pursued;
the processes established in assessing claims be
non-adversarial and informal; and
compensation be provided for individuals who
have suffered physical, sexual or emotional abuse while residing in these
institutions or out-of-home care settings.
A number of churches have established internal
redress-type mechanisms to provide assistance and support to victims of
institutional abuse and other forms of abuse by church personnel. These
processes provide an alternative avenue of redress to civil litigation for
people alleging neglect or abuse in church-run institutions. Many former
residents will not, however, use these processes because of past negative
experiences as children in the institutions operated by the various Churches.
Some data on the numbers of abuse allegations - albeit
incomplete in many cases - dealt with by the Churches and agencies are available.
Under the Catholic Church's Towards
Healing protocol some 1 000 cases of abuse have been received since
1996 when the scheme was introduced. This figure includes all cases of abuse,
not limited to cases of abuse in institutional care. The
Committee was advised by the National Committee for Professional Standards,
which oversees the Towards Healing
protocol, that overall numbers of abuse complaints from ex-residents of
institutions are not available as they are not collected nationally. The
Professional Standards Committee is establishing a system that would provide
that data on a national basis and it is expected to be in place by the end of
Archdiocese of Melbourne, which operates a separate scheme, has had only 'one
or two' complaints relating to abuse within institutions in the archdiocese.
The religious Orders that operated homes in the archdiocese deal with
complaints through the Towards Healing
The Salvation Army stated that 19 former residents
reported sexual abuse by three officers and four employees and a further
24 ex-residents reported physical abuse during the period 1950 to 1979.
Burnside stated that in the last 10 years it
has received five formal complaints about the care experienced; 10-15 requests
for counselling as a direct result of individuals' experiences of care; and one
request for an investigation to be initiated in relation to allegations of harm
that occurred while in care. Wesley
Dalmar stated in the last 18 months, 35
clients have contacted Dalmar to see their files. Of these 35 clients, 13 have
alleged abuse or unduly harsh treatment during their time with Dalmar.
The United Protestant Association (UPA) stated that
seven allegations of sexual abuse had been raised, either directly or indirectly
with UPA, over the last eight years. Three of these allegations have been
referred to the police; two were raised by third parties citing only general
information, and two were received from people who have not provided sufficient
detail which might be referred to the police.
Barnardos indicated that they had received about eight
complaints from ex-residents - six related to the 1950s and two related to the
Barnardos drew attention to a case in the 1980s when it was made aware of
sexual abuse allegations by a house-father, Mr
in one of its group homes during the 1960s. Holyoake was later
charged and subsequently jailed. Mofflyn
stated that a case was reported in 1996 where there were allegations made
against a male worker in a children's residential unit. Western Australian
police investigated the matter but subsequently decided not to proceed with
charges of indecent dealing or sexual assault due to insufficient evidence.
As noted above, the number of complaints received by
the different Churches varies. Data indicates that the Catholic Church has
received the largest number of complaints overall. Recent publicity concerning
abuse allegations in the Salvation Army and Anglican
Churches and indeed the number of
references made in submissions suggests that these and other churches may
witness increasing numbers of abuse complaints in the future. It is therefore
essential that complaints handling procedures across all Churches are effective
and transparent, especially in the light of criticisms of Catholic Church
processes in particular (as discussed below).
The Catholic Church's Towards Healing protocol provides an example of that Church's
attempt to address situations of abuse in Catholic institutions. The protocol
operates for all Catholic dioceses, except the Archdiocese of Melbourne, which
has separate procedures in place, and
for all religious orders. The Jesuit Order recently adopted the Towards Healing protocols, replacing
their existing protocols for dealing with abuse claims. The Jesuit Provincial
stated that their former protocols fostered a legalistic approach to claims of
sexual abuse that had the result of harassing victims and working against
Since 1996 the Melbourne
archdiocese has used an independent commissioner to investigate abuse
Under the Towards
Healing protocol the bishops and leaders of religious institutes in each
State appoint a Director of Professional Standards to manage the process in
relation to specific complaints. The Director is responsible for appointing
assessors to investigate complaints; facilitators to determine processes by
which agreements can be reached to assist victims and determine what the Church
authorities can do to assist victims; and reviewers who conduct reviews, as
required, of the process. Reviewers are required to be independent and not have
close associations with either the complainant or the church authority
responsible for dealing with the complaint.
A Professional Standards Resource Group is also
appointed by the bishops and leaders of religious institutes. This group acts
as an advisory group on matters concerning professional standards, and its
membership comprises one priest and one religious and other people (up to 10)
with expertise in areas such as child protection, social sciences and civil and
provides that assessors investigate the evidence regarding a complaint and
provide a written report to the church authority, such as the religious Order
the subject of the complaint, and the Director of Professional Standards. The
church authority then makes a determination on the facts as presented as to
what further action is required. Responses may include an apology on behalf of
the Church, the provision of counselling services or the payment of counselling
costs. Financial assistance or reparation may also be paid to victims of a
criminal offence or civil wrong. Reparation payments are not subject to a
monetary ceiling. A facilitator is appointed by the church authority and the
victim to moderate a settlement and determine the ongoing needs of the victim.
A review of process of the procedures is available (but
not a review of outcomes) if the complainant (or the accused person or persons)
is not satisfied with the response of the Church authority. The Director
appoints the reviewer to conduct an independent evaluation.
Submissions to the inquiry expressed a numbers of
criticisms of the Towards Healing
process. Submissions from several complainants who have used the process
provided detailed documentary accounts of alleged neglect and abuse that were
provided to Church authorities during the process only to have the assessor
find that - the alleged abusing nun or brother denied the allegations; was too
old, senile or had died; no evidence existed of the particular form of abuse or
neglect occurring; or no corroborating evidence was found for the allegations.
Complainants then received virtual pro forma letters from the relevant Order
stating that the matters raised had not been substantiated and that the Order
could not take the matter of the complaint further. One
submission stated 'I think it [the process] is rigged so the church always
comes out looking good'.
Evidence to the inquiry also noted that the structured
nature of the Towards Healing processes
means that it is difficult to initiate more informal processes with the Church
authorities that would facilitate face-to-face meetings between victims and the
relevant Church authorities and/or perpetrators of past abuse. Victims often
desire reconciliation and healing before other more material needs. One witness
...the churches are not being proactive enough in listening to the
stories of the people who have been through the system, listening to their
needs and trying to work with them to meet those needs.
The witnesses pointed to the South African Truth and
Reconciliation Commission as a possible model.
There needs to be some type of truth and reconciliation
commission - that is what I think needs to be done - where they [the Churches]
come and listen...some substantial time to actually listen to the people and
their needs and to work towards meeting those needs.
Another witness noted that their support group [Jobe's
Trust] has been trying to work within the Towards
Healing processes to make the Church accountable and to reconcile with
victims but to no avail.
...we have also
campaigned with the chairperson of Towards Healing to acknowledge the abuse and
to reconcile and compensate these victims; and we have come up against brick
walls all the way around...We have put to the church our grievances about how
difficult it has been for us to get them to the table, but they just refuse to
budge. I am sorry, but this is a fact: Towards Healing is a farce.
Complainants were previously subject to a
confidentiality clause as a condition of an agreement with the Church but this
is now not a requirement. One submission noted that the inclusion of a
confidentiality clause left claimants 'feeling demeaned and that all they'd
received was "hush money"'.
Healing protocol was also criticised by some victims as being an 'in-house'
procedure not subject to effective checks and balances and one that lacked
transparency and openness. One submission argued that there was a need to
'review this Program and report on its fairness to both sides, in particular
who acts as judge'.
of the Law School
at the University of Western
Sydney, in a study of the Towards Healing protocol, proposed a number of changes to the
procedures. He noted that as the Director, who plays a pivotal role in the
whole process, is appointed by the Church, there is the risk that complainants
and the public generally may perceive the appointment as lacking sufficient
independence from the Church. He suggested that the Professional Standards
Resource Group could appoint or have a role in the appointment of the Director.
Appointment procedures to this body would, however, need to change as currently
its membership is appointed by the Church. He suggested that external
appointments could be made to this body through government, Non-Government Organisations
or community organisations involvement. For example, the relevant Minister with
responsibility for child welfare matters could nominate members of the Resource
The study also argued that procedures could be made
more transparent by outsourcing specific aspects of the process, for example,
the investigation process - 'this simple measure has the potential to enhance
transparency and improve public confidence in the system'. In
addition, the study proposed that there should be a mechanism for implementing
an independent review of decisions of the Director. This could be undertaken by
the Resource Group, if independent members were appointed to that body (as
discussed above) or through the establishment of an independent body (see
below) which would also act as a review mechanism.
In addition, Dr Altobelli
proposed the establishment of an external review mechanism, such as an independently
appointed ombudsman, who would have the power to review any institutional
processes. He envisaged this office operating like an industry ombudsman, for
example, similar to the Private Health Insurance Ombudsman in the health area,
with extensive powers of investigation and review and whose greatest regulatory
power would be to publish its review findings in the public arena. It could,
however, go further and facilitate community education about awareness,
prevention and management of institutional abuse.
Broken Rites also argued that the issue of financial
compensation in the Towards Healing process
'has turned out to be a lottery and persons who enter the process can encounter
major problems'. Broken Rites added that:
Some Bishops and Heads of Religious Orders have refused to
comply with the process; some victims have been coerced and intimidated by
aggressive lawyers representing the church authority; church authorities have
approached it as a legal process rather than a mediation and critical information
about the victim has not been shared with the victim. In case after case,
victims were required to sign confidentiality agreements until this was exposed
on the TV program "60 Minutes".
One submission noted that he felt pressured into
accepting a payout for a claim against a religious Order - 'I found that I had
niggling doubts about the offer that was made to me and the injustice of my
being virtually forced to accept what the church had offered. I came to see
that the payout to me was unfair'.
Other churches have also instituted similar internal
complaints processes. The Salvation Army and Barnardos have uniform procedures
in place. Uniting Church agencies have separate procedures, but in NSW and the
ACT there are moves towards uniform processes across agencies in those
jurisdictions. The Anglican Church has no national procedures but is moving
towards a standardised approach across all dioceses. The complaints procedures
outlined below apply to both past and current abuse allegations.
Under the Salvation Army's protocol for sexual and
other abuse the complainant is directed to an 'independent contact person', who
is a local, impartial person experienced in handling complaints, independent of
the Salvation Army. A report on the complaint is provided by the contact person
to the Chief Secretary (Salvation Army's Chief Executive Officer (CEO)) and/or
his delegate. On receipt of this report, the Chief Secretary or his delegate
determines how the complaint is to be dealt with, including the scope of any
investigation required. The way a complaint is dealt with depends on a number
of factors including the nature of the alleged misconduct; the confidentiality
required by the complainant; and whether the alleged offender is or is not
still a Salvationist, living or working in the Salvation Army's jurisdiction.
With the agreement of all parties concerned, mediation which involves the
establishment of a panel of outside professionals, such as a psychologist,
lawyer and/or minister from another church may be used to resolve the dispute.
Both parties generally agree to abide by the decisions of the mediation
panel. The panel also serves as a
mechanism for review of outcomes if claimants are dissatisfied with the
process. However, the Salvation Army will not automatically assume liability
for the costs of the mediation unless special arrangements are made - however,
the Salvation Army noted that in most cases it agrees to pay these costs.
The outcome of a complaint may include reporting the
complaint to the police or other authorities; a written response to the
complainant; a written apology from the alleged offender; counselling for the
complainant or other assistance; counselling for the alleged offender; and/or
warning, suspension or termination of the alleged offender; or no further
action. In cases where monetary payments are made, no confidentiality clauses
are imposed on complainants.
Many critical comments were received during the inquiry
about the lack of support offered by the Salvation Army to ex-residents. One
care leaver noted that:
Over the last few years I was humiliated and offended by the
Salvation Army as on many occasions I have asked for counselling for this
problem and been denied access to this unless I was alcoholic or drug
addicted...At another time another [Salvation Army] officer said after begging
for help "yes it is awful we have to admit even through we have caused the
problem we can't help you". (Sub 266)
Another care leaver argued that the Salvation Army
should offer more support to ex-residents, asking rhetorically 'what can the
Salvation Army and the Government do to assist me now and in the future?'.
Under Barnardos complaints policy the CEO or the Senior
Manager, Youth Services and Aftercare, contacts the complainant to ascertain
the facts from the ex-client's perspective. Advice is given to the complainant
on referring the matter to the police, seeking legal advice, obtaining
professional counselling, and/or seeking peer support, through an organisation
such as CLAN. For some complainants, ongoing counselling is provided and for
others, Barnardos have offered, and paid, compensation.
Agencies of the Uniting
Church, such as UnitingCare
Burnside and Wesley
Dalmar, have separate complaints procedures.
The NSW Uniting
Church is currently developing
uniform procedures for dealing with complaints from ex-residents of
institutional care in NSW and the ACT. The Uniting Church noted that this will
provide a 'consistent response' to allegations of abuse and will include the
type and amount of counselling to be provided, the circumstances under which
compensation payments would be considered appropriate and the format of any
agreement relating to compensation.
Under the draft policy, which is yet to be implemented,
formal investigation of abuse allegations will be undertaken by a person(s)
independent of the agency and of the Uniting
Church. The independent
investigator will report to the head of the agency outlining the outcomes of
the process and recommend an appropriate response. The head of the agency will
take the report to the Board of Management with his/her recommendations. The
Board will then determine the course of action - it may either implement,
modify or reject the recommendations of the investigator. The complainant has
the right to a review of process. The review will be undertaken by a person
appointed by the Moderator of the NSW Synod of the Uniting
Outcomes of the process may include a formal expression
of regret or apology. Where a settlement or some other form of reparation is
recommended and accepted by the Board, the Board will take advice from the Uniting
Church as to the appropriate
quantum and terms of settlement. The Board will not offer a financial settlement
as compensation for past wrongs but may make an offer of contribution or
settlement to assist the person in their current circumstances. An amount of
$50 000 is proposed as the upper limit for financial settlements. No
complainant will be required to give an undertaking that imposes on them an
obligation of silence concerning the circumstances which led them to make a
complaint, as a condition of an agreement.
Under the current UnitingCare
Burnside complaints policy all complaints
are accepted without prejudice and complaints are addressed within the shortest
possible time and usually completed within a 3-month period. A person, or
persons independent of the agency, and of the Uniting
Church, will undertake any
investigation into allegations under the policy. Criminal and/or civil
proceedings are sought where appropriate. Other outcomes include an apology;
counselling; access to the Aftercare program, and, in extreme circumstances,
financial payments. There are no undertakings imposing an obligation of silence
on those bringing a complaint. There is no formal review process for
complainants dissatisfied with the process, but Burnside
indicated that they work towards resolution of disputes with complainants.
complaints procedures provide for an After Care Worker or caseworker to
interview the complainant and identify his/her needs. A resource kit is
supplied to each client which contains information on CLAN, the Aftercare
Resource Centre (a DoCS funded service) and information on other support
services. Types of assistance available include access to personal files;
talking about the Dalmar experience; revisiting Dalmar; and access to support,
which includes counselling; access to other services provided by Dalmar such as
life skills training; or referral to other outside service providers.
Within the Anglican Church the nature of internal
processes is currently left up to individual dioceses, with the different
processes varying significantly from diocese to diocese. If a case being
investigated involves more than one diocese, the process becomes difficult
logistically and legally. An Anglican
Church working group found that existing protocols are deficient in many ways
with victims often coming back with complaints that their original grievance
was not dealt with appropriately. The working group also found that there has
been a defensive and legalistic attitude to the protection of Church assets,
and secrecy about the handling of issues, creating a perception of 'cover up'.
The Anglican Church has drafted new guidelines for
handling abuse complaints across Australia.
The code of conduct, 'Faithfulness in Service', is part of the Church's new
approach to abuse procedures, and will be voted on at the General Synod in
It is envisaged that each diocese would then implement these procedures in
their respective jurisdictions.
The Committee believes that internal Church processes
for dealing with allegations of abuse play an important part in the reconciliation
process and demonstrate the Churches' commitment to address past grievances.
The Committee considers that the processes to
investigate complaints and offer assistance need to be open, rigorous and
accountable. However, the experiences of some victims raise concerns that some
processes lack sufficient transparency and accountability. Victims - and the
public generally - need to have confidence that complainants will receive a
'fair hearing' and that satisfactory outcomes will be achieved. One agency -
UnitingCare Burnside - suggested that governments legislate to ensure that
agencies and institutions that have provided institutional care have
established policies to ensure responses and investigation in the event of
allegations of abuse are provided 'in the most caring and respectful' manner.
The Committee believes that the procedures should
provide for informal processes so that complainants can have an opportunity to
meet in an informal way with Church officials to discuss grievances and resolve
these grievances in a way that will promote 'healing' for the victim. This
could involve meeting with alleged perpetrators or one-on-one apologies or
other forms of redress. The processes should involve listening to victims concerning their needs and what they wish to obtain from the process and
responding compassionately to these concerns.
The Committee believes that reforms are needed to
Church procedures in the interests of transparency and accountability,
especially in the composition of personnel on complaints' bodies. In this
regard the Committee notes that the Director of Professional Standards, for the
Catholic Church's Towards Healing
protocol, and the Chief Secretary, in the case of the Salvation Army process,
play a pivotal role in the respective schemes and both are Church appointees.
Reforms are also needed to internal review procedures, and the range of
supports and other services offered to complainants.
The Committee views with dismay that two of the major
Churches - the Anglican and Uniting Churches
- currently do not have national, uniform complaints procedures in place. While
the Catholic Church comes closest to a national approach it excludes the
Archdiocese of Melbourne, the largest Catholic diocese in the country.
Complainants should have access to, as far as possible, standardised procedures
operating within and across the various Churches. The Committee also believes
that information on complaints procedures should be more widely disseminated by
the churches and agencies, including on their websites.
During the inquiry it was evident to the Committee that
internal complaints review procedures, which function in some Church processes,
are, by themselves, inadequate in arbitrating complaints. The Committee
considers that an external review mechanism such as an independent ombudsman
should be appointed to investigate complaints in relation to procedures by
those using Church-sponsored procedures. The Committee envisages that the
ombudsman would investigate and mediate the complaint with the relevant Church
authority. After the investigation the ombudsman would recommend to the Church
authority that a specific course of action be undertaken. In cases where the
Church authority rejects the ombudsman's proposed course of action or the
complainant remains dissatisfied, the ombudsman would have the option of
publicising the complaint as part of his/her report on the overall operation of
the Churches' complaints mechanisms.
The Committee considers that the Commonwealth Government
should take a leadership role and establish the proposed external complaints
review mechanism under Commonwealth law. It may be that such a mechanism will
need to be established under a cooperative legislative scheme with the States
and Territories conferring powers on the Commonwealth agency as has been the
case with other Commonwealth agencies. The Committee considers that the
Commonwealth should explore all legislative avenues to ensure that the proposed
external complaints review mechanism is established as soon as practicable.
The Committee is also concerned at the serious lack of
comprehensive and up-to-date information on the numbers of abuse allegations
and the quantum of compensation payments provided by the Churches and agencies.
It believes that the Churches and agencies need to be much more transparent in
providing this type of information and believes that data relating to these
matters should be published annually.
That all internal Church and agency-related processes
for handling abuse allegations ensure that:
informal, reconciliation-type processes be
available whereby complainants can meet with Church officials to discuss
complaints and resolve grievances without recourses to more formal processes,
the aim being to promote reconciliation and healing;
where possible, there be independent input into
the appointment of key personnel operating the schemes;
a full range of support and other services be
offered as part of compensation/reparation packages, including monetary
terms of settlement do not impose
confidentiality clauses on complainants;
internal review procedures be improved,
including the appointment of external
appointees independent of the respective Church or agency to conduct reviews;
information on complaints procedures is widely
disseminated, including on Churches' websites.
That the Commonwealth establish an external complaints
review mechanism, such as a national commissioner for children and young people
who would have the power to:
investigate and mediate complaints received by
complainants dissatisfied with Church processes with the relevant Church
review the operations of Church sponsored
complaints mechanisms to enhance transparency and accountability;
report annually to the Parliament on the
operation of the Churches' complaints schemes, including data on the number and
nature of complaints; and
publicise the existence of Church-sponsored
complaints mechanisms widely throughout the community.
That the Churches and agencies publish comprehensive
data on all abuse complaints received to date, and then subsequently on an
annual basis, and that this information include:
numbers of complainants and type of complaints
numbers of Church/agency personnel involved in
complaint allegations; and
amounts of compensation paid to complainants.
That information on the above matters be provided
annually (including any reasons for non-compliance) to the national
commissioner for publication in a consolidated form in the commissioner's
Victims compensation tribunals
All States and Territories have legislative
arrangements for compensation for victims of crime. This provides another
avenue for victims of institutional abuse to claim compensation for crimes
committed against them whilst in institutions.
These arrangements provide an alternative to the usual
adversarial type legal system which many victims find daunting and
intimidating, and, as discussed previously, are often not well suited to cases
involving institutional abuse. For example, under the Victorian Victims of Crime Assistance Act 1996 the applicant must have been a primary
(that is, victim of an act of violence), secondary or related victim of an 'act
of violence', meaning a criminal act or series of related criminal acts that
has resulted in injury or death. 'Injury' is defined to include actual physical
bodily harm or mental illness or disorder.
People seeking compensation under these schemes
generally need to prove that the relevant crime occurred and that the harm
occasioned to them was the result of that crime. There is no prerequisite that
a person has been prosecuted or convicted of the crime. The claimant does not
need to establish liability. Usually the tribunal relies on police reports of
the crime and expert evidence as to the psychological impact of the crime on
Any monies received in the future from other sources in
connection with victims compensation is subject to reimbursement if other legal
action is successful. For example, the NSW Victims
Support and Rehabilitation Act 1996 provides that if a person receives an
award of victims compensation it must be repaid if they receive money from
other sources in connection with the injuries, expenses and losses taken into
account in the award (section 34(1A)).
Time limitations apply in all schemes, except in the
case of Tasmania where a time
limit is not specified in the legislation. Applications for compensation must
generally be lodged within two or three years after the date of the offence (12
months apply in the case of the ACT and the NT), though all jurisdictions allow
for exceptions to the time limit. In the case of NSW, the victims compensation
tribunal would normally grant an extension in cases of sexual assault, child
abuse and domestic violence, unless there is no good reason to do so.
The maximum amount of compensation payable varies from
$10 000 in the case of Tasmania
to $75 000 in the case of Queensland.
A maximum payment of $50 000 is payable in NSW, Victoria
($60 000 for primary victims,
$50 000 for secondary and related victims), South
Australia and the ACT.
A number of care leavers have successfully pursued
claims though these processes. One care leaver stated that he had received
$40 000 through the NSW Victims Compensation Tribunal.
Some concerns were expressed during the inquiry about
the difficulties experienced by some victims awarded payments through victims compensation
tribunals. Often people either did not realise or were not adequately informed
by their legal representatives of the requirement for the repayment of monies
awarded via victims compensation if receiving a settlement from other sources. One person
alleged that his legal representatives misled him and other persons about the
effect of an award of victims compensation on moneys received in the settlement
of civil proceedings.
It is important to recognise that many care leavers are
very damaged and have low self-esteem so that they will struggle to fully
understand the legal and advocacy environment. It is imperative that legal
representatives explain their actions and any repercussions in as clear and
straightforward terms as possible to their clients to ensure they are fully
aware of any obligations arising from legal action
The Committee believes that compensation through
victims compensation tribunals may offer a useful avenue of redress for many
victims of institutional abuse. The Committee notes however, that although the
burden of proof is lesser than that required under other legal processes, a
level of proof is still required to successfully pursue claims.
The Committee considers that the availability of this
avenue of redress to victims of institutional abuse should be widely
disseminated to care leavers and support and advocacy groups representing care
The need for a Royal Commission
Many submissions to the inquiry from support and
advocacy groups and many individual care leavers called for the establishment
of a Royal Commission into institutional care practices. Several
care leavers noted that there have been Royal Commissions into a wide variety
of issues yet governments appear reluctant to appoint one into the important
issue of children and institutional abuse.
CLAN, in calling for a Royal Commission into past
institutional care and fostering practices, argued that:
The issues raised by this [Senate] Inquiry are far-reaching and
involve a significant degree of criminal activity which can only be addressed
by a Royal Commission. In particular, there were institutions for children
whose practices...were notorious for their inhumanity and criminality and should
be exposed to public scrutiny.
Some groups argued that a Royal Commission was needed
to look into the broader issue of child protection in Australia.
Bravehearts argued that a Royal Commission was needed to inquire into child
protection matters including the issue of the protection of children in institutional
care and/or those children subject to the statutory intervention of government
agencies. The organisation stated that:
It is our contention that in order to properly address any
issue, to find a practical and workable solution, you must clearly and
precisely understand the problem. In Australia, we can not even agree on what
constitutes "child abuse" let alone effectively address the
problem....A Royal Commission would clearly articulate the problem not only for
our law and policy makers but for the Australian community as a whole and would
set the agenda for real resolution of this most pressing and serious of threats
against our young.
Evidence to the inquiry favoured the establishment of a
Commonwealth Royal Commission rather than State-based Royal Commissions. Broken
Rites stated that:
We certainly do not need state based royal commissions; we need
a national royal commission. Subpoenaing documents held by state agencies will
be just as important as subpoenaing documents held by church agencies, and it
will be difficult; the Forde inquiry made that clear...I do not think matters
would be resolved by having a state royal commission.
Bravehearts also argued for a national inquiry and
stated - 'This issue [of child abuse] is not confined to Queensland,
just like it is not confined to institutions that provide homes for children'.
The nature and role of Royal
Royal Commissions are part of the executive arm of
government. They are appointed by governments to conduct inquiries, obtain information
and report to government. They may be appointed by the Commonwealth Government
or by State Governments.
Royal Commissions have extensive powers. One study has noted
Among inquiries, royal commissions and commissions of
inquiry...stand out because of their powers. Reviews, committees, task forces and
working parties share many of the characteristics of commissions; they are
government established, ad hoc,
investigatory and advisory bodies. But commissions are armed with powers which
give them a capacity for coercion that other inquiries lack. These powers
enable commissions to unearth evidence, but also have a significant and
sometimes intrusive impact on the affairs of governments and individuals.
The Commonwealth's Royal
Commissions Act 1902 includes the following coercive powers:
power to summons witnesses and take evidence
power to apply to a judge for a search warrant
power to compel a witness to give evidence, even
if that evidence is self-incriminating (section 6A);
authority to issue a warrant for arrest of a
witness failing to appear (section 6B); and
power to protect the Commission and the
Commissioner from contempt (section 6O).
Royal Commissions are not bound by the rules of
evidence and they may, at their discretion, adopt an inquisitorial approach.
One study noted that 'commissions may adopt inquisitorial processes aimed at
discovering the truth of a situation, rather than adversarial court processes
designed to force the prosecution to establish its case. It is this procedural
flexibility which enables commissions to uncover and receive evidence not
available in the usual court system'.
These coercive powers, however, do not remove the need
for a commission of inquiry to observe rules which promote procedural fairness.
These rules include the rules of natural justice which require an unbiased
Commission and an opportunity for any person named at an inquiry to be heard on
any allegation of wrongdoing.
Royal Commissioners, in the exercise of their duty,
have the same protection and immunity as a judge of the High Court. This means
that the common law of contempt applies to a Royal Commission as if it were a
superior court, as distinct from an inferior court such as a Magistrates Court.
The common law of contempt empowers a presiding judge to control behaviour
within the court. A judge may determine whether contempt has occurred and
impose a penalty. A witness or a legal practitioner appearing before a Royal
Commission has the same immunities and protection as if they were appearing in
the High Court, for example, in that interference by way of obstruction or
threat of such persons would be a contempt.
Royal Commissions do not lay charges but the
recommendations or findings of the Commission may include matters leading to
subsequent prosecutions. The reports of Royal Commissions are usually delivered
to the Government of the day for tabling in the Parliament.
A Royal Commission into
The Committee believes that evidence to the inquiry
warrants a Royal Commission into the extent of physical and/or sexual assault
within institutions and the degree to which criminal practices were concealed
by the relevant State and/or Church authorities.
of Broken Rites has stated that a Royal Commission would be well suited to
examine these matters.
A commission would be encouraged to examine in detail the
repeated failure by church hierarchy and government bureaucracies to take
responsive and responsible action. It would hear of internal omissions that enabled
and allowed abusers to remain concealed and active in their crime. While many
of the paedophiles operated individually, in some situations they have worked
in groups for decades.
Much evidence to the inquiry indicated knowledge and
concealment by the State and Church authorities and by others, such as the
police and health personnel, of the actual conditions in institutions including
cases of criminal and sexual assault. The Committee heard similar stories from
witnesses outlining cases of abuse, often by the same perpetrators in the same
institutions (or other institutions where the perpetrators had been 'moved
on'), and were told that various authorities were informed, often over many
years, of abusive practices. The Committee considers it is almost beyond belief
that the relevant authorities did not know that such practices were occurring
at least in several institutions where a consistent pattern of abuse should
have appeared evident.
In relation to institutions operated by the Catholic
Church, the example of Neerkol is illustrative of a pattern of concealment and
collusion between authorities. It is evident that the Catholic Church and the
State Government must have known of the various forms of abuse that occurred in
the orphanage. One detailed submission from a number of ex-residents of the
orphanage noted that ex-residents made complaints regarding abuse to the Mother
Superior of the orphanage; the priest resident at the orphanage; child welfare
officers; Rockhampton police (especially those who ran away from the
orphanage); families when taken in for the holidays; families in cases where
ex-residents went to live on farms; and on leaving the orphanage, the Catholic
Bishop of Rockhampton. The submission noted that 'to our knowledge all reports were
Regarding the Christian
Brothers it is apparent that the Christian
Brothers authorities must have known of
illegal practices. Dr Coldrey
refers to a letter from Brother Conlon
to the Dublin headquarters of the
Order that Brother Keaney had
been made aware of an indecency charge against a particular Brother. Conlon
I tried hard to get this Brother transferred from Clontarf
during the past six months, but have failed...I know it is a delicate matter to
deal with...I do not wish to be critical of the Provincial, as I know only too
well his many difficulties. Still, I think he should be more prompt in dealing
with offences of this kind.
A similar pattern of concealment is evident with
respect to orphanages operated by the Salvation Army and the same reluctance of
the hierarchy - in this case the Salvation Army - to take action against
Even to this day [Captain] Morton
parades around in his Salvation Army uniform...The hierarchy of the Salvation
Army were then and still are fully aware of his atrocities against the boys in
the orphanages. Letters have been written to the headquarters complaining of
his behaviour but nothing has ever been done to make him account for his
behaviour...When I got out of the clutches of the Salvation Army, I complained
about the orphanage and what I had suffered whilst I was in there and in
particular, I complained of Morton and [Captain] Patteson...When I asked if they
[Salvation Army] had ever taken action against Morton, the reply was, "You
or anyone else cannot do anything; the law will not allow you".
I know of one boy, and there were others, a very young boy named
who wrote, and bravely signed the letter, to the Salvation Army headquarters in
and brought to their attention the activities of Captain Stan
Morton and asking the senior officers for
help. Norman Stenning's
letter was returned to the orphanage and to Captain Morton
and Captain Patteson. These
two officers then set upon this brave young boy and I know that it is a nightmare
to him even now, and he is over seventy years of age. So do not accept any
denial of knowledge from this organisation. (Sub 282)
...I think that it is a disgrace that those of us who complained years
ago were never taken seriously...So can I ask when is justice going to roll -
could you please tell me why my complaints all those years ago were ignored?...Can
I ask when is the Salvation Army going to ask those officers that it knows
committed abuses to apologise? (Sub 286)
One state ward also noted that 'information has
filtered down to me, as indications of a massive cover up of abuse over thirty
years by the Salvation Army of knowing of high incidence of child abuse occurring
in the Gill Memorial Home for Boys - Goulburn, in which they managed and failed
to take appropriate action to constrain, or restrain the nature of this abuse'.
The familiar pattern of 'cover up' of abusive practices
was evident in State-run institutions, as is illustrated below in a care
leaver's experience of Parramatta Girls Home and Hay Detention Centre. Neither
the staff nor inspectors took action against clearly criminal behaviour
inflicted on residents.
and Hay - where was the monitoring?
MURRAY - In your written submission and in your
verbal submission you have concentrated on the men and the things that were
done to you. Where were the women staff in all this?
Ms Robb - The women were around, but they did not do
anything. They saw a lot. There were a few nasty women there too-cruel women. I
never, ever got hit by a woman. But the men had their places: they had shower
blocks, they had isolation, they had their offices. They did it in front of
muster. We were made examples of in front of everyone.
MURRAY - In your submission you say:
'I could barely lift my head. I was so sore I
was in agony-busted lips, black eyes, bruised, teeth missing'. The women staff
would have seen that.
Ms Robb - But that was their job.
MURRAY - What did they do about it?
Ms Robb - Nothing. The odd one felt sorry for you,
but that was their job. They knew what happened, but they kept their jobs...
Ms Robb - Yes, they did. But if you look at the
photos that were taken at Parramatta, that was all glorified.
MURRAY - Say somebody like you had been bashed and
had black eyes and bruised lips and so on, would they hide such a person from
the inspector? How was the physical treatment concealed?
Ms Robb - The only time that anyone came in there
was when someone was going to Hay. I was in isolation when I got bashed, and I
did not see anyone. I saw the officers that came up to me, but I never saw
anyone higher than that from outside. Until I tried to abscond, I never saw
anyone. I was not ready to go to Hay then. What they put me through was just
torture. But they never sent me to Hay after I got my teeth busted. It was not
until I tried to abscond, and then they came in. But, no, no-one saw me except
the officers, female and male, and some of the girls.
MURRAY - In your submission you record something
which I think must come out of your file-some remarks by a consultant
psychiatrist. Were you interviewed by a psychiatrist whilst you were there?
Ms Robb - Yes.
MURRAY - And did you report to him or her what was
Ms Robb - The psychiatrist who was there that interviewed
us was the criminal who put us on Largactil.
MURRAY - But you mentioned things like being
assaulted. What I want to get out of you is whether anybody in authority was
ever told by either the girls or the staff about these dreadful things that
Ms Robb - I could not answer that.
MURRAY - But did you tell anyone?
Ms Robb - No, I did not tell anyone-because they
were people who were there all the time. They had to know what was happening;
they did know what was happening. Why go and say anything and get a bashing for
Hansard 3.2.04, pp.9-10.
Other submissions from care leavers recorded a pattern
of concealment and a lack of action in addressing concerns they raised. These
included a failure to address serious concerns when raised with, among others,
welfare officers, health personnel and teachers.
One lad was belted on the bare buttocks by [Brother] Doyle
with a fan belt. He absconded and on being picked up by the Welfare he showed
them the black and blue state of his bottom. They enquired of Doyle
what caused such damage. His reply, "the boy inflicted such on
himself". The lad in question never returned to Clontarf, however the
Welfare never stepped in to protect the other kids still at risk from this
sadist. (Sub 25)
Ben also spoke of a local Tamworth
doctor who visited the centre [Tamworth Boys Home]. Any complaint about
mistreatment or injuries received as a result of a beating were responded to by
the doctor with the query, "How did you say this happened again?" If
the boy replied with the same answer then the doctor would call the guard and
state that the boy was gaining too much weight and that a certain number of
meals would have to be missed. (Sub 329)
The Major...gave me another 12 "cuts" for telling lies.
The next day at school the teacher asked me "what is wrong with your
hands, why can't you write?' I told him why. He told me to go to the headmaster
and I explained to him. All the headmaster said was "GO BACK TO
CLASS". Nothing was done. We were all alone. We had no one to turn to. All
we could do was suffer and bare it. (Sub 336)
The teachers at South Goulburn
and the teachers at Goulburn High
School all knew of the terrible happenings in the
[Gill Memorial] orphanage. They saw the damaged boys; they were told of the
happenings at the orphanage but they did nothing to help. (Sub 282)
Police were also informed of abuse occurring in homes
yet apparently no action was taken.
...the boys used to abscond or run away from the orphanages and
the police would capture them. The police would then give them a hiding and
deliver them back to the home. The Salvation Army officers in the home would
then give the boys a hiding. That is the way it was. The police knew what was
going on up there, but they did absolutely nothing.
I ran away from there when I was 12 years old. I got charged
with uncontrollable behaviour at Goulburn Police Station. I reported the sexual
assault to the Goulburn Police. I got 6 to 8 months at Doruke Training Centre
Windsor. (Sub 312)
Evidence to the Committee indicated that perpetrators
of abuse and paedophiles freely operated in many homes and were often moved
between institutions operated by the various Churches.
Broken Rites claimed a number of paedophiles worked in
the two Christian Brothers
orphanages in Victoria
- St Vincent's, South Melbourne
and St Augustine's, Geelong
and that these Brothers 'appear to have been able to move between the two
A state ward resident at St Augustine's,
Geelong confirmed that one Brother
referred to as the 'red terror' because he carried round a red strap and a
number of other Brothers at the home 'were also known by the boys to be
A similar paedophile ring operated at St Alipius
School, Ballarat, which led to criminal prosecutions. The ring was said to
involve three Christian Brothers,
including the headmaster, and a priest. One of the Brothers died in the 1970s.
The two surviving Brothers were tried and in 1996 Brother Dowlan
was jailed for nine years (reduced on appeal to six years) and Brother Best
received a nine months suspended sentence. The priest involved, Fr
Ridsdale, is already serving an 18-years
sentence for sex offences, including acts committed at St Alipius,
and was not charged again.
The movement of known offenders did not just occur
between diocese and institutions, but between countries. The Committee received
evidence that when some St John of God Brothers, who operated Marylands
boarding school in Christchurch, New Zealand, were accused of sexual abuse at
that school no investigation was made by the Order and the Brothers were
transferred back to Australia.
Currently some 110 men in New
Zealand are taking action against the St
John of God Brothers in New Zealand
over physical and sexual abuse allegations at the Marylands
School in Christchurch.
The allegations range from 1959 to 1980. One former
student at the school stated that he was abused by a Brother at the school and
received a $82 500 settlement from the Order - 'I was forced to accept
what was offered even though I knew it was unfair...I'd like to have the
opportunity to put my case to a court with a jury so that a fair decision is
Submissions also claimed that paedophile rings operated
in the Christian Brothers
orphanages in Western Australia
and that paedophiles were transferred between these orphanages. One care leaver
As with the three other institutions, there were paedophile Christian
Brothers on the staff at Tardun from the
1930s through to the 1950s... A lot of the sexual abuse of kids at Tardun was
committed by "lay brothers", they were the ones who supervised the
farm work as they were not qualified to teach in the classroom. One of the
worst molesters in the early 1940s after complaints from lads in Tardun was
simply transferred to Castledare, a junior orphanage back in Perth
where he happily resided for ten years. That left another three known molesters
still on the Tardun staff. (Sub 365)
also refers to the existence of paedophile rings at Bindoon and Castedare
operating over a number of years - 'it is clear abusers were known to each
other, and to some extent operated as a team'. Dr
Coldrey refers to 'five Brothers as multiple
abusers' and that two of the Brothers 'probably molested some fifty boys each'. Dr
Coldrey noted that the infiltration of the
staff of orphanages by committed paedophiles would have been relatively 'easy
to do' in the past - often the institutions 'were desperate for staff to fill
vacancies rather than just taking applications and sifting through them'.
Broken Rites also stated that there was a ring of
paedophile Brothers operating at several St John of God homes in Victoria - with
the group initially establishing itself within the Cheltenham Home. When a
property at Lilydale was acquired some of the paedophiles were transferred to
this Home and another younger group of paedophiles was recruited.
The experiences of orphans and boys who never received any
visitors at Cheltenham deserve special mention since we
believe that they reveal the mindset of the paedophiles. These boys were always
quartered in upstairs dormitories and away from any boys who would be visited
by family or legal guardians. They speak about being given a red medicine that
made them drowsy. Pack rapes took place and boys who resisted or attempted to
fight off their attackers were beaten mercilessly. These were boys of 10-13
years up against adult males.
also noted that the Churches' placement of known child molesters as chaplains
in institutions needs to be investigated. He argued that the Churches placed
these individuals in homes:
...to get them out of the way, with the pious hope that the
superintendent of the staff, or the brothers or the sisters, would keep an eye
on them. This was explored in the Forde inquiry in Queensland...and
the case of Father Stanaway,
who was definitely placed in a Brisbane
home by the archdiocese to get him out of the way, was documented in full.
There was no doubt. I came across a case concerning the brothers' home at South
Melbourne, St Vincent's, between 1948 and
1957. There was a chaplain there...about whom there is a strong odour, and there
were allegations about him in the media during the 1990s. I know from [the]
brothers' internal sources that he was considered extremely unsatisfactory and
they could not get rid of him because the diocese would not provide anyone else
as chaplain. There is evidence too...that in the 1940s at Fairbridge Pinjarra, in
the west, there was a chaplain who seemingly molested boys, was involved in
stealing money and committed suicide. The question is whether he was appointed
by people knowing some of that in advance to get rid of him out of the
mainstream. It shows an attitude to children and their welfare which was, to
say the least, extremely casual at best.
The Committee believes that these matters, especially
the alleged concealment of criminal activities and the operation of paedophile
rings in institutions require a thorough investigation that only a Royal
Commission would satisfactorily undertake.
The Committee notes that as discussed previously a
number of State Governments have initiated inquiries into abuse in institutional
care and related issues. In 1998, a Commission of Inquiry into allegations of
abuse and mistreatment of children in Queensland
institutions was conducted. More recently in 2003 the Tasmanian Ombudsman, in
conjunction with the Department of Health and Human Services, undertook a
review of claims of abuse of children in state care. In June 2004 the South
Australian Government announced a judicial Commission of Inquiry into any
concealment or mishandling of allegations or reports of sexual abuse involving
children while under the guardianship of the State.
The Committee believes that this inquiry has raised a
number of extremely serious issues in relation to institutional abuse in State
and church-run orphanages and other institutions, especially the concealment of
these actions by the relevant State and Church authorities. It became evident during
the inquiry that a thorough investigation and resolution of these complex issues
go far beyond the powers and scope of a Senate inquiry to inquire into and
As a consequence, and mindful of the many
representations made to it, the Committee considers that the Commonwealth should
establish a Royal Commission into institutional abuse in these institutions,
with a specific and strictly limited focus on the nature and extent of physical
abuse and/or sexual assault within these institutions, and the role of the
State authorities and/or Church organisations in any concealment of past
criminal practices. Such a Royal Commission would provide a means of accessing
documents and other evidence in the possession of State authorities and the
Churches and also provide a means by which individual perpetrators of such
abuse could be identified and a process set in train to bring these individuals
The Committee is mindful of the cost of Royal
Commissions and the often lengthy timeframes over which they are conducted. The
Committee therefore reiterates that it is important that the proposed Royal
Commission should operate within the narrow and specifically-focussed terms of
reference that the Committee proposes and that it report within a reasonable
timeframe. The Committee does not favour any broadening of the focus of the
proposed Royal Commission on matters related to child protection generally.
However, the Committee also recognises that decisions
to establish Royal Commissions involve a range of conflicting factors upon
which governments must deliberate. While strong calls for a Royal Commission
were received from many individuals and groups during the inquiry and the
Committee's discussion reflects these calls, the Committee also acknowledges
that there is a diversity of views over Royal Commissions in the community with
many supportive and many opposed. The different views held within the community
were reflected within the Committee.
The Committee has therefore proposed that all those
institutions and out-of-home care facilities that provided care of children
should demonstrate greater accountability and openness by cooperating with
investigative authorities. Should such cooperation not be forthcoming, a
process to establish a Royal Commission should be instigated.
That the Commonwealth Government seek a means to
require all charitable and church-run institutions and out-of-home care
facilities to open their files and premises and provide full cooperation to
authorities to investigate the nature and extent within these institutions of
criminal physical assault, including assault leading to death, and criminal
sexual assault, and to establish and report on concealment of past criminal
practices or of persons known, suspected or alleged to have committed crimes
against children in their care, by the relevant authorities, charities and/or
And if the requisite full cooperation is not received, and failing
full access and investigation as required above being commenced within six
months of this Report's tabling, that the Commonwealth Government then,
following consultation with state and territory governments, consider
establishing a Royal Commission into State, charitable, and church-run
institutions and out-of-home care during the last century, provided that the
be of a short duration not exceeding 18 months,
and be designed to bring closure to this issue, as far as that is possible; and
be narrowly conceived so as to focus within
these institutions, on
the nature and extent of criminal physical
assault of children and young persons, including assault leading to death;
criminal sexual assault of children and young
and any concealment of past criminal practices
or of persons known, suspected or alleged to have committed crimes against
children in their care, by the relevant State authorities, charities and/or
Senator Humphries expressed reservations about this
recommendation. While agreeing that full and effective cooperation by the
institutions concerned is vital in addressing the actions and misdeeds of the
past, he is concerned that the conducting of a Royal Commission would be a
painful experience to many care-leavers and may delay the institutions
concerned from fully meeting their obligations to make redress.