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Published: 07 June 2018
Author: Annie Kent

Child sex abuse. Time to take stock

What has happened to the Child Sex Abuse Royal Commission’s recommendations?

The Guardian recently published an article which discussed the Royal Commission into the Northern Territory’s youth justice system (“NT Youth Justice Royal Commission”). A former detainee stated that the NT Youth Justice Royal Commission was a “waste of money”given that recommendations were not being acted on.

The NT Youth Justice Royal Commission made more than 230 recommendations and the Northern Territory Government announced that it would spend $229 million to implement more than 200 of the recommendations but could not afford to implement them all.

We query if the various State and Territory governments and child care institutions bear the same attitude to the recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Commission”).

The Commission handed down its final report recommendations in December 2017 which can be viewed here: https://www.childabuseroyalcommission.gov.au/sites/default/files/final_report_-_recommendations.pdf

Since 2013, the Commission conducted countless public hearings, about 8,013 private sessions and a policy and research program to investigate institutional responses to allegations and incidents of child sexual abuse and related matters. As a result, the Commission made over 400 recommendations in relation to institutional child abuse.

What have governments and institutions done with the Royal Commission’s recommendations?

So far, the most widely publicised matter that has resulted from the Commission’s recommendations is the Federal Government’s Redress Scheme (“the Redress Scheme”). The Redress Scheme is set to commence on 1 July 2018. Ryan Carlisle Thomas has posted a number of blogs discussing the Redress Scheme and an overview can be found here: https://rctlaw.com.au/legal-blog/2017/what-does-the-new-commonwealth-redress-scheme-mean-for-survivors 

Who’s opted in so far?

So far, all Australian States and Territories except Western Australia have opted in to the Scheme. More recently, the Catholic Church, Scouts Australia, the Salvation Army, YMCA Australia, the Anglican Church and the Uniting Church have also opted in. This means that survivors who suffered sexual abuse, and related non-sexual abuse, within institutions run by these bodies might be eligible to apply to the Redress Scheme. Details of the application process are yet to be released, although it is understood that the process will be run through a Commonwealth department.

The Redress Scheme has been subject to various criticisms from all sides of the debate, and of particular note is that cap on redress is $150,000 rather than $200,000 as recommended by the Royal Commission.z

At this stage we take the view that the Redress Scheme may be an appropriate option for some survivors of abuse, but most claimants will be better advised to consult a lawyer and use one of the other options available to them.

State governments are also making it easier for abuse survivors to commence legal proceedings to access justice. For example, the Victorian government introduced the ‘Legal Identity of Defendants (Organisational Child Abuse) Bill 2018’ (“the Bill”) earlier this year. The Bill paves the way for legislation that allows child abuse plaintiffs to sue organisational defendants that are unincorporated non-government organisations which use trusts to conduct their activities. This Bill would essentially strike out the notorious ‘Ellis Defence’that was previously relied upon by the Catholic Church in abuse claims.

Indirect abuse

When it comes to commencing legal proceedings or accessing justice, we query what the State and Territory governments intend to do, if anything, in relation to people who have not suffered direct abuse from a perpetrator but may be closely associated with, a dependent of or have cared for, a survivor or abuse.

These closely associated individuals may include parents, carers, siblings, partners, extended family and children. These people might have suffered injury and damage as a result of the survivor’s abuse. Claims for compensation rarely succeed in secondary victim situations as the current state of the law focuses on compensation for primary victims of abuse.

Onus of proof reversed

In relation to the duty of institutions, the Victorian government has also legislated to reverse the onus of proof. In civil litigation, when a survivor proves that abuse occurred and was committed by an individual associated with a relevant institution, the breach of an institution’s duty to care for the child will be presumed unless the organisation in question can prove that it took reasonable precautions to prevent the abuse. More about the reverse onus can be found here: https://rctlaw.com.au/legal-blog/2016/onus-of-proof-to-be-reversed-in-victorian-child-abuse-cases

Some State and Territory governments have shown support for a nationally consistent Working with Children Checks scheme. Some States and territories have enacted legislation to implement the Commission’s recommended standards. However, not all States have acted on this and should do so to make institutions safer for children in the future.

Interestingly, the Commission also recommended that institutions review their existing institutional honours, dedications and memorials. Institutions should respond appropriately to requests from survivors in relation to this and such responses may form part of redress.

There is still a long way to go to address and prevent child abuse. All the Commission’s recommendations need to be discussed and implemented in order to ensure institutions are safer for children and all people alike in the future. Ryan Carlisle Thomas will continue to provide information about advancements in regard to the Commission’s recommendations.