Personal Injury

Sexual Abuse Apology and the 9 Positive Developments within the Legal System Since the Royal Commission into Institutional Responses to Child Sexual Abuse

• A national apology delivered to those who suffered abuse in institutions within Australia
• A collective social shift in the way institutional abuse has historically been viewed and dealt with
• Increased scrutiny on institution and recognition of past wrongs
• Increased funding for support services for survivors of abuse and for mental health services
• Introduction and strengthening of child protection legislation
• Removals of barriers to claim compensation
• For the first time, institutions have admitted their failings and paid survivors large sums of compensation, sometimes in the millions
• Investigation of historic abuse claims by police and subsequent arrests and convictions
• Accountability and targeted action – annual reports by Federal, State and Territory governments on their progress on the implementation of the recommendations of the Royal Commission

The Royal Commission into Institutional Responses to Child Sexual Abuse was established by the Australian Government in 2013 in response to revelations of historic sexual abuse occurring over decades and the inadequate response of the institutions involved. The national sexual abuse apology by the government may now help to heal some of the damage caused by this abuse.

The Royal Commission ran between 13 January 2013 and 15 December 2017 and had extensive powers to compel the giving and collection of evidence.

4041 phone calls were made to the commission. 25,964 letters were received. 8013 private sessions were held. 21 volumes of findings were published. 409 recommendations were made.

Previous commissions and fact finding reviews had previously been conducted by various State and Territory governments over the decades, but never with the amount of resources and breadth of authority given to the Royal Commission into Institutional Responses to Child Sexual Abuse. It was this resourcing and federal authority that enabled the Royal Commission to uncover the shocking extent of abuse that had historically occurred and the severe failings that occurred historically occurred in addressing this abuse in terms of the perpetrators of abuse, the institutions who they represented and the needs of survivors.

Since the delivery of the Commission’s final report, a number of positive developments have occurred that arguably, would not have occurred without the important work of the Royal Commission.

NATIONAL APOLOGY

1.  A National Apology to Those Who Suffered Abuse in Institutions Within Australia

On 22 October 2018, the Prime Minister of Australia, Scott Morrison, delivered an apology on behalf of the people of Australia to those who were subject to abuse in institutions. (Transcript can be found here: https://www.pm.gov.au/media/national-apology-address) This was a historic moment of recognition of the abhorrent abuse that occurred and the harm it caused to thousands of Australians.

Numerous institutions have also offered their own apologies to those who have been abused for the wrongs that were committed against them.

2.  Collective Social Shift in the Way Abuse has Been Viewed and Dealt with and Opportunity for Survivors to Come Forward, Tell Their Stories and Be Believed

Of those who spoke to or provided information to the Royal Commission, it was found that it took an average of 22 years for a survivor to reveal their abuse.

Many survivors had believed at the time that they were the only one being abused. Many survivors discovered for the first time that they were not alone.

In many instances survivors did not tell anyone at the time as they did not think they would be believed. For some survivors who did tell people what was happening at the time of the abuse, this was exactly what occurred. They were not believed and in some instances, they were punished for daring to suggest such incidents had occurred.

Several examples of courageous individuals coming forward with their stories of abuse have led to not only a greater level of understanding about the extent of the problems in the past, but an increase in the number of people who have reported crimes and pursued action for past wrongs.

The Royal Commission website published 3593 publically available narratives from survivors sharing their stories to give them a voice and ensure their stories are heard. They can be found here: https://bit.ly/3oEUXEy

3.  Increased Scrutiny on Institutions / Recognition of Past Wrongs

The Royal Commission put institutions and their conduct in the spotlight. For too long, institutions had failed to prevent, address and provide redress for the abuse that occurred under their watch.

4.  Increased Funding for Support Services for Survivors of Abuse and for Mental Health Services

Significant funding has been committed to a range of organisations to assist with support services, mental health services and even legal services.

For example, the New South Wales government has committed:
• $37.7 million for early intervention, child specialist therapeutic services and community resources
• $28.3 million to deliver the Child Sexual Offence Evidence Program
• $14.8 million to expand outreach for Aboriginal people and people from culturally and linguistically diverse communities
• $14.3 million for an integrated specialist therapeutic service
• $6.9 million for strengthened Out Of Home Care checks
• $5.9 million for improved safety of children in juvenile detention
• $4.1 million to expand Local Court capacity
• $3.8 million to consult with affected sectors on implementing Child Safe Standards and to develop a scheme for the regulation of Child Safe Standards
• $2.7 million to provide resources for NGO caseworkers
• $2.5 million funding boost for NSW-funded community support services
• $2.1 million for a worker register to better protect children in intensive therapeutic care.

Source: https://www.nsw.gov.au/projects/nsw-government-response-to-royal-commission#where-investments-will-be-made

5.  Introduction and Strengthening of Child Protection Legislation

a.  Expansion of Background Checks and Mandatory Reporter Legislative Requirements

Working with Children Checks may be common place now, but historically, the regime was not implemented widely until the 2000s. These checks are a screen process conducted by State and Territory government departments to check a person’s criminal record and suitability to work with children in an employed or volunteer capacity.

In the past, many institutions had no proper or thorough process for screening those who came into contact with children.

In recent times, steps have been taken to make Working with Children Checks a nationally available system, so that those who may commit an offence in one jurisdiction will be information available to those in other jurisdictions. This will deal with a fundamental flaw in the system, whereby a person who may have committed an offence or have an issue that would appear on a working with children check in one State or Territory, would not have any such record appear in another State and Territory, thereby removing a crucial opportunity for potential employers to prevent someone who may not be suitable from working with children.

Many occupations who work with children, such as teachers, early childhood and care practitioners, doctors, nurses and police have mandatory obligations to report to their authorities instances where they have suspicious of various forms of abuse, such as physical and sexual abuse, emotional abuse, neglect and exposure to family violence.

Some jurisdictions have also expanded their mandatory reporters to include priests and religious clergy. We have previously written about this topic here.

6.  Removal of Barriers to Claim Compensation

a.  Removal of Limitation Periods to Make Claims

In the past, many people were unable to make a successful legal claim for compensation through the courts because the events they complained of occurred long ago and the limitation period in which to pursue action had long lapsed.

Now, the removal of limitation periods has allowed survivors of abuse to bring claims through the legal system, jurisdictions across Australia have introduced legislation to remove limitation periods allowing survivors to sue institutions and individuals for the abuse they suffered and claim compensation.

These changes in law allow survivors of abuse to pursue their claims in many cases decades after the abuse has occurred.

The following legislation is now in effect, removing the limitation period for historic abuse claims:

• Australian Capital Territory: Limitation Act 1985
• New South Wales: Limitation Act 1969 section 6A
• Northern Territory: Limitation Act 1981 section 5A
• Queensland: Limitation of Actions Act 1974 section 11A
• South Australia: Limitation of Actions Act 1939, Part 1A section 3A
• Tasmania: Limitation Act 1974 section 5B
• Victoria: Limitation of Actions Act 1958 s27P
• Western Australia: Limitation Act 2005 section 6A

The National Redress Scheme was also introduced by the Australian Parliament.

This provided survivors of abuse with an additional avenue in which to seek compensation for the abuse they suffered. However, there are limitations with the Redress Scheme. The Scheme that was introduced has a lower monetary limit available than that recommended by the Royal Commission. The maximum compensation available to a survivor of abuse if $150,000 if they are able to satisfy all of the requirements of the matrix used to determine available compensation. This is a difficult threshold to meet. For many survivors of abuse, they may be able to obtain substantially higher compensation by pursuing civil action against the institution responsible through the courts. The Scheme is also limited to a 10 year period.

The Scheme is only available in relation to the institutions that have signed up to be part of the Scheme. If you were abused in an institution that has not signed up the Redress Scheme, you will not be able to claim compensation through the Scheme.

b.  Some Jurisdictions Have Introduced Legislation to Allow for Overturning of Deeds

For many survivors of abuse who sought compensation from institutions prior to the reforms to limitation periods, they received paltry payouts and had signed away their rights to further compensation under prohibitive deeds of release. Overturning such deeds was often an impossible task.

In a number of jurisdictions around Australia, it is now possible to overturn historic deeds where the compensation previously received was inadequate.

Queensland, Tasmania, Western Australia and Victoria have all enacted changes to their legislation to allow for the overturning of deeds in various ways. New South Wales is yet to introduce any legislation to allow for the overturning of deeds and recent decisions of the Supreme Court of New South Wales do not support the overturning of deeds.

c.  Introduction of Nomination of Proper Defendant Provisions

Another barrier for many survivors of abuse, particularly noted in relation to abuse suffered within the Catholic or other churches, is that the institution was not set up in a structure that provided for a legal entity that could be sued. In some instances, this was a deliberate tactic, as deployed by the Catholic Church (as seen in the use of the “Ellis defence”) to ensure that survivors of abuse were unable to sue the church for compensation and limited the ability to recover compensation from the Church.

As a result of this unsavoury situation, recommendation was made, and in various jurisdictions, legislation enacted to ensure that where there was not a traditional legal defendant, the institutions would have to nominate a defendant who had sufficient assets to response to any claim made against them. This vitally important change provides an avenue for recourse for survivors that was not previously available.

7.  Increased investigation of historic abuse matters by Police and subsequent arrests and convictions

The extensive powers of the Royal Commission allowed it to uncovered significant amounts of information and evidence in a structured way. As a result, 2575 referrals to authorities were made to authorities in various State and Territory Police agencies to enable them to investigate and pursue alleged crimes that were uncovered by the Commission.

8.  Annual reports by Federal, State and Territory Governments Reporting on their Progress on the Implementation of the Recommendations of the Royal Commission within their Jurisdictions

Each year between 2018 and December 2022, governments around Australia produce an annual report outlining the developments and progress they have made to implement the 409 recommendations of the Royal Commission and improve the safety and welfare of children across Australia.

This commitment to report on progress is a measurable step to ensure real action is made and the reports of the Commission are not just filed away, but turned into actions.

• The Australian Government’s 2019 report can be found here: https://www.childabuseroyalcommissionresponse.gov.au/sites/default/files/2019-12/annual_progress_report_2019.pdf
• New South Wales Government 2019 report can be found here: https://www.nsw.gov.au/sites/default/files/2020-10/NSW-Royal-Commission-Annual-Report-on-Progress-2019.pdf
• Victorian Government 2019 report can be found here: https://www.vic.gov.au/victorian-government-annual-report-2019-royal-commission-institutional-responses-child-sexual-abuse
• Queensland Government 2019 report can be found here: https://www.premiers.qld.gov.au/publications/categories/reports/assets/gov-annual-progress-report-child-abuse-20.pdf
• South Australia Government 2019 report can be found here: https://www.childprotection.sa.gov.au/documents/report/rcircsa-2020-recommendations-status.pdf
• Tasmania Government 2019 report can be found here: https://www.justice.tas.gov.au/__data/assets/pdf_file/0008/554849/Tasmanian-Government-Child-Abuse-Royal-Commission-Second-Annual-Progress-Report-and-Action-Plan-2020-FINAL.pdf
• Australian Capital Territory 2019 report can be found here: https://www.act.gov.au/__data/assets/pdf_file/0007/1457278/Second-Annual-Progress-Report.pdf
• Northern Territory Government first annual report can be found here: https://rmo.nt.gov.au/__data/assets/pdf_file/0008/675314/RCIRCSA-First-Annual-Progress-Report.pdf