CHAPTER 6
CONCLUSIONS AND RECOMMENDATIONS
National leadership
6.1
Evidence to the inquiry overwhelmingly indicated that, despite progress
made, there remains much work to be done on the implementation of the
recommendations of the Lost Innocents and Forgotten Australians
reports. The reasons for this are various, and include refusal to implement,
failure to implement, partial implementation and changing circumstances. The Committee
notes that, with the benefit of experience since the original reports, certain recommendations
might need revision to achieve the desired outcomes for care leavers.
6.2
In relation to former child migrants, the Committee notes that the
Commonwealth government offered support for, or undertook to take action on,
roughly two-thirds of the recommendations of Lost Innocents. A number of
others were rejected but on the basis that the government would undertake a
commensurate or alternative course of action elsewhere. For example, it refused
to extend funding for the UK travel fund and tracing agencies in the UK on the
basis that it would fund a travel scheme and the Child Migrants Trust in
Australia.
6.3
While former child migrants share many if not all of the problems and
concerns of Forgotten Australians, the enduring issues that are specific to this
group generally relate to funding and services around the facilitation of
overseas family reunions. This reflects the often cruel historical policies and
practices around child migration, which denied many the knowledge of their own
families and relations. Despite the steps taken by the Commonwealth government
to implement the recommendations of Lost Innocents, there remains a
substantial need for national leadership in continuing to provide funding for
former child migrants to access specialised services in Australia, and to
foster and maintain transnational links with relevant departments and agencies
overseas.
6.4
More generally, former child migrants as a subset of the Forgotten
Australians—people who experienced abuse and neglect in institutions and out-of-home
care as children—have a range of other health needs arising from their
childhood experiences. The need for national leadership on the recommendations
of the Forgotten Australians report is therefore no less critical.
6.5
The Committee agreed that, despite some areas of improvement, the
implementation of the recommendations of the Forgotten Australians
report has in many ways been poor, and most particularly in critical areas
where leadership is required by the Commonwealth government, both to ensure adequate
recognition of the historical truths acknowledged in its original response, and
to fashion a truly coordinated national response that delivers practical
services and outcomes for those who suffered the horrific abuse and shameful
neglect in care over the last century.
6.6
The previous Commonwealth government's welcoming of the Forgotten
Australians report, and acknowledgment of the events it examined as being 'a
matter of shame for this country', stand in contrast to the overall tenor of
its response to the recommendations. Of the 39 recommendations of the Forgotten
Australians report, the government rejected over half either explicitly or
on the basis that the responsibility for implementation resided in a State or
authority over which the Commonwealth had no responsibility or capacity to
influence. Some recommendations were less explicitly rejected, with the
response indicating 'in-principle' support but merely pointing to existing
schemes or processes as sufficient and appropriate to satisfy the intent of the
recommendation. A number were effectively rejected, with the response indicating
agreement with the recommendation yet making no commitment to implementation;
and disappointing lack of action thereafter. Yet other recommendations were
accepted but with a commitment to undertake some relatively minor action such
as bringing a matter to the attention of another agency or body.
6.7
The Committee acknowledges the constitutional division of responsibilities
which allowed the previous Commonwealth government to reject responsibility for
so many of the recommendations of Forgotten Australians. That noted, the
Committee affirms its view that the Commonwealth occupies a special place in
the Australian federation which affords it a unique leadership role in national
challenges such as this. It should be remembered that the Commonwealth's child
endowment payments to the States—to whatever degree they may be said to have
sustained the operation of the institutions in which abuse and neglect of
children was commonplace—undeniably facilitated the system which caused so much
harm and lasting damage to children consigned to its care. Less directly, but
just as clearly, the Commonwealth was responsible for its financial support of
the States to implement their flawed policies on child protection over many
decades.
6.8
Further, the Committee's original report was clear that any strict
jurisdictional limits on the Commonwealth's responsibility for child protection
are overborne by the moral obligation that rests with the national government
to provide clear leadership in matters of national significance and importance.
As Australia's federal system has evolved, with the increasing centralisation
of policy and service design and coordination in the federal sphere, that moral
obligation only increases. With conservative estimates that over half a million
people experienced out-of-home care across Australia in the last century, the
national significance of the issues brought to prominence by Forgotten
Australians is undeniable. The proper implementation of its recommendations
is important in order to satisfy the values of fairness and compassion that
mark the Australian character.
6.9
The Committee welcomes the current government's recognition that there
is a need to do more to progress the implementation of the recommendations of
Forgotten Australians report, and its undertaking to review the previous
government's responses and identify areas in which it can contribute and make
improvements. The Committee urges the Commonwealth, where possible, to pursue
coordinated strategies for the implementation of recommendations through
national forums such as the Council of Australian Governments (COAG) and the
Community and Disability Services Ministers' Advisory Council (CDSMAC).
The role of the States
6.10
Many of the recommendations of Lost Innocents and Forgotten
Australians prescribed certain actions and responsibilities for the States
and/or churches and religious agencies, based on the clear relationships of
responsibility and duty of care between these entities and the vulnerable
children placed in their care.
6.11
Of the States, Queensland is notable, and to be commended, for being an
early mover on care leaver issues, although much of this was set in train by
the Forde Inquiry rather than the reports of the Committee. This has seen
Queensland not only conduct a redress scheme but also establish a foundation to
support care leavers and pioneer a care leaver services hub through the co-location
of services at Lotus Place. Tasmania and Western Australia are also notable for
having established redress schemes, and South Australia and very recently
Victoria have improved their funding commitments for the support and provision
of services to care leavers.
6.12
Despite these improvements, the inquiry has shown that the States are
collectively underfunding the services so desperately required by care leavers,
such that lack of funding is a de facto barrier to access even where a service
is nominally available. Most important of all, however, is that the
implementation of recommendations has been inconsistent across the States, and
these disparate responses are the underlying cause of the many inequities faced
by care leavers in (a) the levels and availability of services across State
borders and (b) denial of access to services in States other that the one in
which a care leaver was resident in care as a child.
6.13
While the Committee acknowledges that at all States have sought to
implement various recommendations, a greater commitment to the provision of
comprehensive services is critical for the spirit and intent of the Committee's
reports to be fulfilled. As it does the Commonwealth, the Committee urges the
States, where possible, to pursue coordinated strategies for the implementation
of the reports' recommendations through national forums such as the Council of
Australian Governments (COAG) and the Community and Disability Services
Ministers' Advisory Council (CDSMAC).
National and State apologies
6.14
In relation to a formal statement by the Commonwealth acknowledging the
error of child migration schemes and expressing regret for the harms suffered
by former child migrants, the Committee notes that the expression of regret
contained in the Commonwealth's response to this recommendation was
insubstantial and insufficient to satisfy the spirit or intent of the
recommendation.
6.15
The Committee therefore urges the current Commonwealth government to
commit to providing such an acknowledgment as an act of national leadership to
recognise both the role of previous Australian governments in child migration
programs and the experiences of former child migrants. The Committee believes that
any such acknowledgement could be issued in conjunction with, or incorporated
into, a national apology for care leavers more broadly, discussed below.
However, any such apology would need to contain specific reference to former
child migrants and to the elements of acknowledgment and expression listed in
the original recommendation of the Lost Innocents report.
Recommendation 1
6.16
The Committee recommends that the Commonwealth government issue a formal
acknowledgement and expression of regret to former child migrants in accordance
with recommendation 30 of the Lost Innocents report; and that this
statement be issued in conjunction with, or as a part of, a broader
Commonwealth apology to people who experienced abuse and/or neglect in
institutional or out-of-home care as children.[1]
6.17
The Committee found that, of the States, only Western Australia and
South Australia have issued formal statements that specifically acknowledge their
respective roles in the child migration schemes of last century.
6.18
However, all States have now issued public formal apologies to care
leavers more generally, as per the Queensland statement which the Committee's
original recommendation proposed as a satisfactory model for the States to
follow. These have, to varying degrees of success, acknowledged the experiences
of care leavers more generally, as well as the responsibility of the States for
the harms suffered by children in care. Therefore, to the extent that these State
apologies were in themselves sufficient in substance and appropriately made
(see below), the Committee considers the States to have made satisfactory
formal statements as originally recommended. The Committee notes also that many
States have made suitable statements at the unveiling of memorials for former
child migrants, established on the basis of other recommendations of the Lost
Innocents report.
6.19
The Committee received considerable comment on recommendation 1 of the Forgotten
Australians report that the Commonwealth government issue a formal
statement on behalf of the nation acknowledging the hurt and distress suffered
by care leavers and apologising for the harm caused to children who suffered
neglect and abuse in institutional care.
6.20
Many submitters and witnesses considered this issue to be emblematic of
the Commonwealth's moral responsibility and duty of leadership in relation to
care leavers. The failure of the previous Commonwealth government to act on
this recommendation was contrasted with the 2008 apology to the stolen
generations. The Committee agreed with the view that that apology was a
powerful example of how such an act can promote healing and reconciliation when
offered with due respect for ceremony, symbolism and sincerity, and is an
appropriate model for a national apology to care leavers. While the Committee
notes the importance of practical assistance and reparations for care leavers,
it does not consider that the issuing of an apology should be formally tied to
any particular scheme or form of assistance. The importance of providing
services and compensation to Forgotten Australians is not underestimated in
recognising that these things should not be a pre-condition of an apology.
Recommendation 2
6.21
The Committee recommends that the Commonwealth government issue a formal
statement of acknowledgement and apology to children who suffered hurt and
distress, or abuse and assault, in institutional care, in accordance with
recommendation 1 of the Forgotten Australians report.
6.22
In terms of State responses to Forgotten Australians recommendation
2, the Committee notes that at the time of that report only Queensland had
issued an appropriate statement of acknowledgment and apology to care leavers.
However, since then the remaining States—New South Wales, South Australia,
Tasmania, Victoria and Western Australia—have each made such a statement. The Committee
commends the States for these actions, despite some criticisms by care leavers
about the form and substance of apologies. With one exception, the Committee
felt that the State apologies satisfied the intent of Committee's original
recommendation. The one exception was the New South Wales' apology, which was
issued as a response to a question without notice in the New South Wales parliament.
This occasion did not adequately involve care leavers and clearly lacked an
appropriate spirit of bipartisanship and ceremony. The Committee was also
unimpressed by the substance of the apology, which was cursory and lacking in
sensitivity. The Committee notes with approval that the New South Wales
government has indicated it is committed to re-issuing its statement to care
leavers. In light of this, the Committee considers it is unnecessary to make
any further recommendation on this issue.
6.23
The Committee received very little evidence in relation to statements
issued by churches and agencies since the Forgotten Australians report,
which reflects the fact that there has been little action by churches and
agencies since that time. An exception was the apology delivered by Pope
Benedict to victims of abuse by the Catholic Church in Australia, although this
was the subject of criticism.
6.24
More generally, the Committee was unanimous in its concern at the poor performance
of the churches and religious agencies in implementing the recommendations of Forgotten
Australians. The Committee is frustrated at the lack of proper
acknowledgment of the issues raised in the report. This is itself underscored
by the absence of any coordinated or comprehensive effort to take actions that
are commensurate with the obligation to accept responsibility, and make
reparation, for the abuse and neglect suffered by children in the care of
churches and religious agencies. With this in mind, and given their almost
complete failure to participate in the present inquiry, the Committee agreed it
is appropriate that such bodies be asked to provide unequivocal public
statements addressing the recommendations of the Lost Innocents and Forgotten
Australians reports. These statements will provide a necessary baseline
against which the public and any future inquiries on these matters may judge
the progress of churches and religious agencies on these issues.
Recommendation 3
6.25
The Committee recommends that the Prime Minister write to relevant
churches and religious agencies requesting that they provide formal statements
concerning the need for such bodies to make reparation to children who suffered
abuse and neglect in their care in the last century, and addressing in
particular the issues of apology, redress and provision of services to care
leavers, and the implementation of the recommendations of the Forgotten
Australians report; the Committee further recommends that the Prime Minster
cause the statements provided by churches and religious agencies to be collated
and tabled in parliament.
Reparation and redress schemes
6.26
Recommendation 6 of the Forgotten Australians report went to the
establishment of a national redress scheme by the Commonwealth. While this was
not supported by the government, much of the evidence received by the inquiry commented
on this issue and on redress funds more generally.
6.27
The Committee notes that a number of States have established redress
funds. These are:
-
Tasmania: this 2003 scheme predated the Forgotten Australians report,
but was re-opened in 2008 in recognition of the number of outstanding claimants;
-
Queensland: this scheme operated over 2007-08, with second-tier
payments still being assessed; and
-
Western Australia: applications for this scheme closed on 30
April 2009, with claims still being assessed.
6.28
Of the remaining States, South Australia is currently in the process of
deciding whether it will establish a scheme. New South Wales and Victoria,
however, have explicitly refused to establish redress schemes, insisting that
care leavers must pursue claims through the criminal and/or civil courts.
6.29
A number of concerns were raised regarding inequitable outcomes arising
from the State redress schemes. One source of these was the inconsistency of
access, which can clearly be addressed only through providing all care leavers
with access to a redress scheme, regardless of the State in which they grew up
as children or reside in today.
6.30
A second source of inequity arises from the limited timeframes for the
operation of redress schemes, which means that people are excluded if they do not
submit an application in the period allowed. This is particularly problematic
because many care leavers face barriers to accessing schemes by virtue of their
experiences in care, such as social isolation and mistrust of bureaucracy.
While the Committee understands the imperatives in seeking to confine the
administrative burden of schemes through definite timeframes, it is appropriate
that provision is made for continuing receipt of applications for redress. The
evidence to the inquiry suggests that this is unlikely to represent a
significant administrative burden to governments.
6.31
A third source of inequity relates to the different conditions and amounts
of compensation provided across the various State schemes. The Committee heard
that even within schemes differentiated payments—whether based on legalistic
assessments of harm and damage or on pre-defined levels according to evidence
submitted with claims—can lead to distress for applicants. This occurs both
through the re-traumatisation of having to detail abuses in order to establish
claims; and through feelings that awards of compensation amounted to judgements
on the relative severity of abuse, or indeed on whether or not abuse in fact
occurred. The Committee acknowledges that this is a difficult issue to resolve,
given the necessity of establishing reasonable criteria for the payment of
compensation to claimants. The evidence to the inquiry suggests that this issue
is best addressed through tiered payments based on graded standards of proof,
and by the provision of suitable support and counselling for claimants to
prepare applications, in the communication of reasons for decisions relating to
claims, and in the processes for receiving and resolving complaints.
6.32
The Committee notes that the operation of redress schemes to date, both
internationally and domestically, provides many valuable lessons in how such
schemes can be best designed and administered to avoid inequitable or
distressing outcomes for claimants. The Committee commends the most recent
Australian scheme, Redress WA, as a demonstration of how the lessons of past
schemes can be applied to achieve the best possible outcomes in this area.
6.33
Beyond these issues, the Committee was impressed by the positive
potential of redress schemes as public forums to acknowledge the experiences of
care leavers and to allow people to tell their stories in an appropriately
formal yet sensitive environment. Further, while the Committee understands that
money could never compensate for the childhood abuse and neglect, such
awards—particularly when coupled with individual apologies to claimants—can be
a worthy source of vindication and recognition for care leavers.
6.34
The Committee also considers that redress schemes can effectively
contribute to the identification and prosecution of historical crimes of sexual
and physical abuse. Evidence to the inquiry revealed the importance of
centralised and coordinated avenues for the reporting and investigation of such
offences by appropriately expert and dedicated police units. Redress schemes,
properly linked to and supported by appropriate police units, can improve the
detection of patterns of criminal behaviour and establish the all-important
corroboration of claims that is critical to the standards of proof needed in
criminal trials. The Committee believes that future redress schemes established
in Australia must be designed to ensure that they maximise the potential for
the identification of recidivist conduct as well as information corroborating
other claims.
6.35
The Committee heard contrasting views on whether the Commonwealth should
establish a national reparations fund as per recommendation 6 of Forgotten
Australians, or instead use its influence to ensure that those States which
have not yet done so establish redress schemes. Taking into account the operation
of redress schemes in three States since the original recommendation, the Committee
concluded that the appropriate role for the Commonwealth from this point on is
to actively ensure that that redress schemes are established by those States
which have not yet done so, namely South Australia, New South Wales and
Victoria. The Committee regards this as the most administratively feasible and
cost effective approach, given the need for States to be intimately involved in
processing applications, accessing care leaver records, providing appropriate
support for applicants and making determinations.
6.36
However, the Committee considered that there remains a moral obligation
on the Commonwealth to make an additional commitment to the making of
reparations to care leavers. It is appropriate, given the conclusions of this
and previous reports, that this commitment is demonstrated through the
Commonwealth showing leadership to ensure that the establishment and
continuation of State redress schemes is pursued through COAG and any other
appropriate national forum. The Committee notes that the financial contribution
of the Commonwealth to care leavers is most appropriately directed towards
funding of the national care leaver groups and services for care leavers, as
outlined in subsequent recommendations.
6.37
The Committee believes that the Commonwealth government has a critical
role to play in ensuring that redress schemes are established in the States
identified above. The Commonwealth has a moral obligation to use its
substantial influence to ensure that the issue of redress schemes is taken up in
the appropriate policy forums, and is a consideration in its financial support
of the relevant States. In relation to the other States, the Commonwealth must
ensure that ongoing provision is made to provide redress to care leavers who
may have been disadvantaged by the limited periods of operation for redress
schemes.
Recommendation 4
6.38
The Committee recommends that the Commonwealth government pursue all
available policy and political options to ensure that South Australia, New
South Wales and Victoria establish redress schemes for people who suffered
neglect and/or abuse in institutional settings or out-of-home care in the last
century; and that the remaining States make provision to ensure continued
receipt of redress claims.
Recommendation 5
6.39
The Committee recommends that the Commonwealth government pursue the
establishment of State redress schemes through the Council of Australian
Governments (COAG) and other appropriate national forums.
6.40
An issue related to the making of reparations was Lost Innocents Recommendation
17, which called for the conferring of automatic citizenship on former child
migrants. The recommendation also called for provision to be made for
individuals to exercise choice over whether they would receive citizenship on
these terms. Given this, it is apparent that the Commonwealth government
response—which objected to this proposal on the grounds that it could conflict
with a person's existing citizenship status or preference—was at least in part
poorly considered. Nevertheless, the Committee accepts that a legislative
approach to the issue may not have been necessary, given the apparent number of
cases involved. Although the Committee was unfortunately not able to determine
how many of former child migrants who have become Australian citizens since
their arrival in Australia or since the publication of Lost Innocents,
there was evidence that few cases involving citizenship problems for former
child migrants are outstanding. The Committee did not identify any systemic or
administrative remedy for those cases that remain to emerge or be settled,
leading it to conclude that remaining cases may be appropriately dealt with on
a case-by-case basis by DIAC. The Committee notes that the CMT is able to offer
assistance in such cases.
6.41
In relation to church redress schemes, the evidence to the inquiry
suggests that there are still considerable problems with the variation in
processes across the various church jurisdictions. The anecdotal evidence of
advocates with experience in accessing and negotiating these schemes revealed
considerable dissatisfaction and frustration at the inconsistency of processes,
which meant that potential claimants could not anticipate the likely course of
proceedings, and were not receiving comparable treatment.
6.42
Equally, the Committee heard claims that the transparency and
accountability of church redress processes were often being undermined by
serious breaches of procedural and natural justice standards, such as the
withholding of documentation, inadequate documentation and personnel performing
multiple roles in the process.
6.43
Overall, witnesses indicated that church processes were conducted in a
highly unfair and strategic manner, as reflected in inadequate compensation
outcomes for claimants, particularly where those who did not employ an advocate
in negotiations with church lawyers.
6.44
While some witnesses invited the Committee to conclude that church
redress schemes are of little or no worth, the Committee supports the original
recommendation of Forgotten Australians. Despite the shortcomings that
still affect church processes, such schemes represent a legitimate source of
redress for care leavers and in many cases are the major contribution of such
organisations to compensating care leavers for past wrongs. Given this,
churches must take steps to ensure greater of consistency across all
institutions and States; and that redress processes conform to the elements
defined in the Committee original recommendation.
Recommendation 6
6.45
The Committee recommends that churches take steps to ensure that
processes for handling abuse allegations are consistent across all
jurisdictions; and that such processes conform to recommendation 7 of the Forgotten
Australians report.
Delivery of services
6.46
In relation to former child migrants, the Committee acknowledges that
the previous Commonwealth government's response to the implementation of the
recommendations of the Lost Innocents report was appropriate insofar as
it focused on issues of great importance to former child migrants, in
particular the funding of the Child Migrants Trust (CMT) and establishment of
an Australian travel fund. The Committee considers that the Australian travel
fund for former child migrants was well-designed and sympathetic to the needs
of former child migrants. However, while the Committee understands that issues
of cost and probity required the fund to be restricted in terms of its
eligibility requirements and period of operation, there was significant
evidence that these limits operated in a capricious manner, allowing only those
fortunate enough to locate family or a gravesite in the requisite time—and
indeed those who were willing and able—to receive funding for their travel.
Further, the experience of participants has shown that the limit of one trip
per applicant was clearly inadequate to offer ongoing support for former child
migrants to re-establish and develop links with family overseas.
6.47
The Committee therefore feels that the Commonwealth should consider
giving further support for former child migrants to re-establish and develop
family connections. Such assistance could, for example, take the form of
financial grants (not premised on discriminatory eligibility criteria) or a
re-opening of the Australian Travel Fund (allowing claims from both new and
previous applicants).
Recommendation 7
6.48
The Committee recommends that the Commonwealth government provide
further financial and other support for former child migrants to re-establish
and develop family connections.
6.49
The present inquiry confirmed the importance to former child migrants of
the CMT, which has developed and continues to demonstrate its extensive
expertise in dealing with former child migrants and pursuing their interests.
In particular, the Committee was impressed by the CMT's highly professional and
continuing work in tracing its clients' relatives and, in effecting family
contact and reunions.
6.50
Historically government funding for the CMT has been through the
settlement funding program of the Immigration department.[2]
With these programs now focussed on newly arrived migrants, there was some
discussion that this may no longer be the most appropriate area for the
government to provide funding for the Trust and that programs in FaHCSIA may
now be more suitable.[3]
6.51
However, the Committee was pleased to be advised by DIAC that the
government had committed to extend the funding of the Trust until 2011-12. The
Committee commends the previous and current Commonwealth governments for their
financial support of the CMT and also acknowledges the funding support of
Western Australia. The Committee continues to be impressed by the efforts of
the Trust to locate the families of former child migrants and notes the ongoing
nature of this time-consuming and resource dependent work, and recognises that
the level of funding to the Trust directly impacts on the level of services it
is able to deliver on a national basis. Accordingly, the Committee considers
that the remaining States should also make funding contributions to the CMT to
assist in its work for former child migrants.
Recommendation 8
6.52
The Committee recommends that State governments which have not yet done
so commit funding to the Child Migrants Trust (CMT) for at least the next three
years.
6.53
In relation to the range of services required by care leavers generally,
recommendations 23 to 30 of the Forgotten Australians report addressed
the areas of provision of counselling; health care, housing and aged care; and
education. The report showed as a group that care leavers have extensive,
diverse and in many cases particular needs, arising from their childhood
experiences. Evidence going to the delivery of services for care leavers to the
present inquiry indicated that, while the level and scope of services with a
particular focus on care leavers has improved to some extent, there is still
substantial progress to be made on implementation of the Committee's
recommendations in this area.
6.54
The majority of services specifically designed for and aimed at care
leavers are delivered by non-government bodies or agencies, and support groups such
as CLAN, VANISH (though their services will soon be reduced) and, in
Queensland, the collection of services located at Lotus Place. While a range of
services and support is available for care leavers, levels of funding in most
cases appear to represent an effective barrier to access.
6.55
Arrangements for the provision of services to be available to care
leavers in their State of residency irrespective of the State in which they
received care have not been developed. Instead, care leaver services are often available
for ex-residents of a State's institutions, regardless of where a care leaver
now resides in Australia. Some States will also assist its residents to access
services in the State in which they experienced care. While the Committee notes
that States have made good efforts to improve their administration and support
for such arrangements, these will continue to produce inequitable outcomes as
long as there are different ranges or levels of service across the States. A
number of States offered in-principle support for reciprocal access to services
for care leavers access all States. However, the high-level policy commitment
to this proposal has been lacking.
6.56
A number of submitters and witnesses raised the issue of instituting a
health care card specifically for care leavers to access the range of available
health services, similar to the gold card made available to veterans. While the
Committee understands the attraction of such an approach, it did not agree that
this was the best or most appropriate way to target services to care leavers
that recognise the particular needs of that group.
6.57
The Committee found that specialist counselling services for care
leavers is available in most States. However, as noted above, access to appropriate
long-term counselling is effectively restricted by modest levels of funding to
those bodies with the relevant expertise to provide or broker this service.
6.58
The evidence to the inquiry suggested that the Committee's original
recommendations going to the provision of services remain highly relevant to
the current needs and experiences of care leavers. Given this, and the slow
progress on ensuring the availability of a comprehensive range of services,
particularly counselling, across all States, the Committee feels that a
particular focus on funding for bodies providing particular support and
services for care leavers is the appropriate way to achieve the intent of the
original recommendations. This issue is addressed below.
6.59
With regard to programs in health care, housing, aged care and education
that specifically recognise and cater for the needs of care leavers, the Committee
found that the Commonwealth and State governments alike have been resistant to
the development of such programs. Governments variously argued that specific
recognition of care leavers would operate to discriminate against this group, was
not justified by the numbers of care leavers seeking access to services, or was
unnecessary because existing services were available according to the general
criteria for eligibility. Information on existing programs in these areas
showed that, where care leavers have been acknowledged and catered for as a
specific cohort, this tended to focus on the current generation of care leavers
as opposed to the so-called older care leavers that were the subject of the Forgotten
Australians report.
6.60
The Committee naturally supports all efforts and strategies to ensure
that the systemic problems of the past are not repeated or visited upon those
in care now or in the future. This was the focus of the Committee's report, Protecting
Vulnerable Children: A National Challenge, which was the second report of
the inquiry into children in institutional or out-of-home care. This report was
clearly heavily informed by Forgotten Australians, and some
submissions to the present inquiry also addressed the implementation of its
recommendations. A notable development in this area is also that COAG has
recently endorsed a national approach to child protection through Protecting
Australia's Children is Everyone's Business: National Framework for Protecting Australia's
Children. Primarily, this framework will seek to build collaborative
approaches to preventing child abuse and neglect. However, outcomes 4 and 6 the
framework also recognise that appropriate support and care is needed for
survivors of any abuse and/or neglect.
6.61
Notwithstanding recent steps, the Committee rejects arguments that older
care leavers are not a significant group or can be adequately accommodated
within health, housing, aged care and education programs without recognition of
their likely and particular needs. Given this, the Committee re-endorses
recommendations 25 to 28, and recommendation 30, of the Forgotten Australians
report, and urges the Commonwealth and State governments to commit to
explicit recognition of older care leavers in the funding and development of
health, housing, aged care and education programs.
6.62
The Committee notes that the development of strategies such as the
framework for protecting vulnerable children, to the extent that it deals with
the needs of older care leavers is a step towards demonstrating the
whole-of-government commitment to program and service delivery called for in
recommendation Forgotten Australians recommendation 33. The Committee
commends the government for its use of COAG as a forum to work towards national
approaches to program and service delivery in as health and education, and
urges the government to consider care leavers as a specific cohort in
whole-of-government approaches in these areas. The Committee therefore
re-endorses recommendation 33 of the Forgotten Australians report.
Recommendation 9
6.63
The Committee recommends, in accordance with recommendation 33 of the Forgotten
Australians report, that the Commonwealth and States commit, through the
Council of Australian Governments (COAG), to implementing a whole-of-government
approach to the provision of programs and services for care leavers across
policy areas such as health, housing and welfare and community services and
other relevant policy areas.
Recommendation 10
6.64
The Committee recommends that the Commonwealth and State governments
reconsider the previous responses to recommendations 25 to 28 of the Forgotten
Australians report with a view to explicitly recognising and meeting the
needs of older care leavers in the funding and development of health, housing,
aged care and education programs; and ensuring that appropriate services are
provided.
6.65
Both the Lost Innocents and Forgotten Australians reports
recognised that an important aspect of service design and delivery for
Forgotten Australians was the collection and maintenance of adequate data or
information on care leavers, or groups of care leavers. Evidence to the present
inquiry demonstrated that, although the potential benefits of such undertakings
remain clear, the corollary of governments' unwillingness to recognise care
leavers in the specific design or advertising of services is that governments
are also not prepared to seek a better understanding of this group through
commissioned studies (Lost Innocents recommendation 5) or the use of data
collection via Medicare or Centrelink forms (Forgotten Australians recommendation
31). The Committee notes that its previous reports received unequivocal
evidence of the needs of former child migrants and care leavers, sufficient to
justify the recommendations of those reports. In light of the Commonwealth and
State governments disagreeing with the need for services to be specifically
targeted or communicated to care leavers, the Committee concluded that a
comprehensive study on the scope and extent of services required by this group
is needed to underscore both policy and debate in this area.
6.66
Finally, the Committee considers that there has been very poor progress
on the related issue of the establishment of tertiary courses of study focused
on child protection and related issues, as per recommendation 39 of Forgotten
Australians. The Committee agreed that action on the undertakings provided
in the original response to this recommendation has been disappointing, and
considers that the Commonwealth should resume its dialogue with the Chair in
Child Protection on the implementation of recommendation 39. The Committee
notes that the outcomes of this work should complement the Commonwealth-State
commitment to support a National Research Agenda for Child Protection through
the National Framework for Protecting Australia's Children. In urging
the Commonwealth to re-commit to and advance these undertakings, the Committee
re-endorses its original recommendation relating to tertiary study courses.
Recommendation 11
6.67
The Committee recommends, in accordance with recommendation 39 of the Forgotten
Australians report, that the Commonwealth, in co-operation with State
Governments, establish courses of study at selected tertiary institutions that
focus on child protection and related issues, especially early childhood and
family studies, psychology, conflict management, the impact of institutional
care and social policy to address issues in these areas.
Identification and access to records
6.68
In relation to former child migrants, the Committee found that there has
been a substantial improvement in identification of and access to records
through the development of directories and databases both specific to this
group and more generally related to people who spent time in institutional or
out-of-home care as children.
6.69
For Forgotten Australians more broadly, evidence suggested that there
has also been considerable, albeit ad hoc, improvements across the States and
other relevant organisations and agencies in terms of the preservation and
identification of care leaver records. And, as noted above, many States have
publications and guidelines or legislation to assist people seeking personal
records of their time in State or out-of-home care. Commendably, a number of
specific programs offering support for members of the stolen generations to
locate and access records now exist. However, there are few programs to assist
care leavers more generally, most of whom are required to obtain assistance
with locating and accessing records from care leaver support groups. A notable
exception in development is the Victorian 'Who Am I' project, an interactive
historical database that could prove an accessible means of access to the
personal histories of care leavers.
6.70
The Committee found that the lack of dedicated information and search
services for care leavers generally meant that there was no supported access to
records for care leavers, other than what is available through established care
leaver support services. Some States offer advice or referrals through the department's
granting access to records. However, access to records is invariably governed
by FoI and privacy regimes, although in some cases administrative arrangements
are in place which, while still subject to FoI and privacy principles, can
improve access for care leavers. While fees for FoI applications involving
personal information are routinely waived, the Committee notes a continuing
concern with the complexity and timeframes involved.
6.71
An issue of particular concern in relation to records was the effect of
privacy restrictions on access to information concerning third parties. This
restriction impacts harshly on care leavers, who are continuing to receive records
with information relating to third parties blacked out. In many cases, this
information concerns family members—a cruel outcome for people who are often
seeking to establish the family relationships or sense of self and personal
identity that was denied by the circumstances of their upbringing. The Committee
supports calls for the Commonwealth and States to seek to reform FoI and
privacy regimes to ensure better provision for care leavers to access
information on their relatives and family, for example, through a discretion to
allow third-party access in FoI legislation in legitimate cases. The Committee
urges the Commonwealth to pursue this issue through the Council of Australian
Governments (COAG) as per the original recommendation of the Forgotten
Australians report. The Committee also calls for current reviews of the
Commonwealth and Queensland FoI regimes to explicitly address this issue.
Recommendation 12
6.72
The Committee recommends that the Commonwealth government pursue the
reform of national freedom of information (FoI) and privacy legislation to
ensure that care leavers are not hindered in their access to information about
their childhoods and families; and that current and future reviews of Commonwealth
and State FoI regimes explicitly address this issue.
6.73
All States reported that there was no longer any destruction of care
leaver records taking place; and that procedures for the retention and
preservation of such files are in place. Evidence received from some religious
and non-government organisations also showed that such systems were either in
place or under development. However, care leaver organisations expressed
concern that some destruction of records was taking place in non-government
settings.
Role and operation of support groups and other bodies
6.74
The Committee notes that there was a range of views in relation to
particular support and advocacy groups, and that the performance of support
groups was generally the subject of both praise and criticism to varying
degrees. The Committee recognises that arises in part because of work done by such
groups, which must attempt to encompass the diverse and complex needs and
concerns of a broad collection of individuals who have suffered great physical
and emotional harm. When this complexity of membership is combined with the
very limited resources and the administrative and bureaucratic structure that
are necessary to operate such bodies, the Committee understands that there is a
degree of conflict and dispute, often at a philosophical level, and
occasionally at a personal level.
6.75
Having noted the inevitability of some disagreement occurring between
such groups and their members or interested parties, the Committee expresses its
support and admiration for all care leavers and the groups which work in good
faith to support them.
6.76
As with the previous inquiries into former child migrants and care
leavers, evidence to the inquiry demonstrated that support and advocacy groups
provide the majority of the essential and targeted information and services
accessed by care leavers. There is a substantial number of care leaver advocacy
and support groups, representing a spectrum of approaches to providing support,
self-help, solidarity and succour to those abused and neglected in
institutional care. Noting the diversity of care leavers themselves, the Committee
believes that it is important that a range of such groups is supported to
maintain a range of opportunities for social interaction and networking for
care leavers. The Committee acknowledges that the number of such groups is
increasing.
6.77
Equally, however, the Committee notes that the Alliance for Forgotten
Australians (AFA) and Care Leavers Network Australia (CLAN) respectively play
critical national roles in advocating for, and providing services to, care
leavers. The Committee believes that it is particularly important that these
groups continue to be supported through funding to develop the national
character of their work, given that so many of the Committee's original
recommendations pertain to jurisdictional barriers and better national
coordination of services. While the Committee acknowledges the previous
Commonwealth's governments funding support for the AFA and CLAN, evidence to
the inquiry showed that a higher and recurrent funding commitment is needed to
properly support the advocacy and services they provide, and ensure that such
groups can be as inclusive as possible through being able to maintain an
effective national presence and, in the case of CLAN, without having to fund
its services through membership fees.
6.78
Given the need to support the major national groups offering and
advocacy and support for care leavers, and as much as is possible and
practicable to maintain the variety of groups providing support for care
leavers, the Committee considers that the Commonwealth government should
significantly increase its funding of the AFA and CLAN. To support the smaller
State groups and organisations offering advocacy, support and self-help in this
field, the Department of Families, Housing, Communities and Indigenous Affairs
(FaHCSIA) should be funded to administer a fund to provide operating grants to
such care groups.
Recommendation 13
6.79
The Committee recommends that the Commonwealth government provide
recurrent funding to the Alliance for Forgotten Australians (AFA) and Care
Leavers Network Australia (CLAN) to enable these groups to continue providing
adequate services to care leavers on a national basis.
Recommendation 14
6.80
The Committee recommends that the Commonwealth government provide
funding to the Department of Families, Housing, Community Services and
Indigenous Affairs (FaHCSIA) to administer a fund for providing operating grants
to care leaver advocacy and support groups.
Judicial Reviews and Royal Commission
6.81
In relation to the question of holding judicial inquiries into the
treatment of children in institutional care, the Committee considered whether a
fresh endorsement of the Committee's original recommendation was justified in
the light of developments since the publication of the Lost Innocents report.
The Committee noted that the Forde Inquiry in Queensland and, since then, the
Mullighan Inquiry in South Australia have led to significant recognition of
people who suffered neglect and abuse while in the care of the State; as well
as important changes to systems of child care and protection addressing the
fundamental recommendations of the two inquiries. The Committee notes that to a
considerable extent the lessons of these inquiries are also reflected in reforms
to those systems in other States, as well as in the development of national
approaches. In South Australia, many of the recommendations of the Mullighan
Inquiry went to administrative, procedural and professional reforms to the
police service to ensure that the justice system could deal appropriately with
allegations, victims and perpetrators of sexual abuse of children.
6.82
The Mullighan Inquiry, which had as its focus allegations of sexual
abuse and death of children in State care, resulted in 170 allegations from a
total of 826 being referred to police. As at 1 April 2008, the Committee
understands that two suspects had been arrested and 14 matters referred to the
South Australian Department of Public Prosecutions.[4]
The Forde Inquiry, which had terms of reference requiring it to inquire into
institutions and to review current systems of child care and protection,
resulted in 14 allegations being referred to police for investigation. While
the report found there had been incidents of 'unsafe, improper and unlawful'
behaviour, it could not make detailed findings due to 'the passage of time, the
fact that a number of alleged perpetrators are now deceased, and the difficulty
in obtaining corroborative evidence'.[5]
6.83
The Committee noted also, but only in a general way, the experiences of
the Irish Commission to Inquire into Child Abuse, which ran from 2000 until
June 2009. The timeframe for this inquiry was extended by a number of legal
challenges and reviews, which also led to the names of alleged perpetrators
being suppressed in the inquiry's final report. While the Committee is not
aware of the total cost of the inquiry, the legal nature of its proceedings
necessitated a large staff, including a significant number of senior legal
counsel.[6]
It therefore appears likely that the total cost of the inquiry would have been
substantial.
6.84
The Committee notes that its own reports into children in institutional
care, and the work of advocacy and support bodies, have also contributed to the
improvement of both State and national standards and strategies for child
protection.
6.85
Beyond the ability of State judicial inquiries to inform the reform and
development of appropriate standards and systems for child protection, the Committee
is acutely conscious that the primary concern for many former child migrants
and care leavers in supporting the holding of judicial inquiries is the desire
to see justice done through the naming, charging and prosecution of
perpetrators of historical abuse of children. While the Committee supports all
care leavers in this respect, it believes that there is only modest potential
for successful prosecutions to arise from the conduct of judicial inquiries.
The Committee's conclusion on this question was based on considerations of the
outcomes of previous inquiries, the significant passage of time since the abuse
and neglect complained of, and the numerous legal barriers that would still
confront any criminal or civil claims arising from information obtained through
judicial inquiry.
6.86
Given the Committee's views that the holding of State judicial inquiries
would be unlikely to significantly further inform the reform and development of
child protection systems in Australia, or result in significant number of
successful prosecutions for historical abuse and assault, the Committee decided
that it would not re-endorse recommendation of the Lost Innocents report.
6.87
The Committee heard contrasting opinions on the issue of holding a Royal
Commission into State, charitable and church-run institutions, as recommended
by the Forgotten Australians report. While most submitters and witnesses
agreed that churches and other institutions had failed to meet the conditions
of transparency and cooperation described in the Committee's original
recommendation, there was disagreement on whether the expected expense and time
taken by the holding of a Royal Commission was justified by the likely number
of successful prosecutions that it might produce. Supporters of an inquiry, as
above, emphasised the desire for justice of those who as children were abused
and assaulted while in institutional or out-of-home care. Those who did not
support a Royal Commission emphasised potentially limited outcomes, and the
services and support for care leavers that could instead be provided with that
funding.
6.88
As in the making of the original recommendation, there was a range of
views within the Committee on this question and, conscious of the importance of
this particular issue to many care leavers, the arguments put forward were
carefully considered. The Committee's conclusion was ultimately based on an assessment
of the likely success of a Royal Commission in achieving successful exposure
and prosecution of perpetrators of criminal acts. The Committee senses that
there may be unrealistic expectations held by many as to the outcome of a Royal
Commission. Despite the wider powers of royal commissions, the Committee considers
that any such inquiry would face the same barriers to success as outlined above
in relation to judicial inquiries, and accordingly would be unlikely to produce
outcomes that would justify the significant expenditure of both time and
finances. Even so, while considering that valuable resources could be more
beneficially expended for care leavers, the Committee notes that its views on a
Royal Commission remain subject to the continuing developments with issues related
to the recommendations of the Forgotten Australians reports. The
Committee will maintain its interest in the performance of governments and
non-government bodies in implementing the recommendations of the report,
particularly as they relate to opportunities for redress for care leavers.
6.89
Finally, the Committee notes that the effort to identify and
successfully prosecute perpetrators of historical sexual and physical abuse of
children must remain a goal and commitment of all Australian governments. The
Committee is encouraged that prosecutions can be successfully undertaken based
on the very recent successful prosecutions against a Salvation Army officer in
South Australia and a Christian Brother in Victoria for abuse of children in
homes more than 30 years ago that both resulted in jail terms. Evidence to the
inquiry suggested that certain barriers to the prosecution of historical sexual
and physical abuse of children could be at least partly addressed by ensuring
that specialist police units with expertise in this area exist in each State and
Territory. Indeed, the police forces of some States and Territories may already
have specialist areas that could be expanded to deal with crimes of this
nature. The Committee heard that the use of centralised and expert groups for dealing
with historical abuse complaints could both facilitate the laying of complaints
by victims and increase the potential for repeat offending and corroborative
material to be identified. The coordination of such units nationally would of
course be necessary to maximise the effectiveness of this approach.
6.90
The Committee notes that a fuller assessment of such proposals is needed
as part of developing a national police policy on historical crimes of sexual
and physical abuse of children in care.
Recommendation 15
6.91
The Committee recommends that the Ministerial Council for Police and
Emergency Management (Police) develop and implement a national policy on the
prosecution of, and data collection and sharing about, historical crimes of sexual
and physical abuse of children in care; and that the establishment or further
development of specialist State police units be considered as part of this
policy development process.
Memorials and remembrance
6.92
In relation to the erection of suitable memorials for both former child
migrants and care leavers more generally the Committee was pleased that states
have provided such sites for former child migrants, and substantial progress
has been made in relation to care leaver memorials. The Committee notes that,
despite some frustration at the sometimes lengthy timeframes involved for
appropriate consultation over, and design and siting of, memorials, the value
of these efforts was widely recognised and appreciated by care leavers.
6.93
The Committee was impressed by the institution of an annual remembrance
day for care leavers in Queensland, which appropriately occurs during Child
Protection Week in that State (September). Recognising the importance of such
symbolic events to care leavers, and noting their ability to widely publicise
care leavers and related issues to the community at large, the Committee agreed
that it would beneficial for the other States to institute similar occasions.
Recommendation 16
6.94
The Committee recommends that the States consider establishing an annual
remembrance day for care leavers, similar to that held by Queensland each year
during Child Protection Week.
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