Friday, June 19, 2015

Royal Commission into Institutional Responses to Child Sexual Abuse Case Study 25





Child Abuse Royal Commission Case Study 25 (Or: A Few Thoughts About Redress)

WHAT THIS POST IS ABOUT

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse will hold a public hearing in Sydney (Level 17, Governor Macquarie Tower, 1 Farrer Place, Sydney) next week, from Wednesday 25 March 2015 until Friday 27 March. The purpose of the hearing is to enable invited persons and institutions to speak to their written submissions to the Royal Commission’s consultation paper on redress and civil litigation. Following this public hearing, the Royal Commission will issue its final report on redress and civil litigation by mid‑2015.

Opening Remarks -PUBLIC HEARING INTO REDRESS AND CIVIL LITIGATION Case study 25The Hon Justice Peter McClellan AM

Chair, Royal Commission into institutional Responses to Child Sexual Abuse
In January this year, we released the Royal Commission’s Consultation Paper on Redress and Civil Litigation. The purpose of this public hearing - the 25th public hearing of the Royal Commission - is to enable invited persons and institutions to speak to the written submissions they have made to the Consultation Paper.

Our Terms of Reference require us to make recommendations in relation to ‘ensuring justice for victims through the provision of redress by institutions’. Many institutions have acknowledged that their previous response to survivors has been inadequate. Many survivors have a pressing need for assistance, including effective and just redress. As I indicated when we released the Consultation Paper, it is for these reasons that the Commissioners accepted that we should consider the issue of redress and make final recommendations in relation to it as soon as possible.

When releasing the Consultation Paper, I also noted that a reading of our Terms of Reference indicates that there is agreement amongst all governments, both the Commonwealth and the states, that ‘justice for victims’ requires appropriate redress. Our discussions with institutions confirm that every major institution also accepts that effective redress is required if victims are to receive justice.

I also noted that, when considering the requirement for justice through redress, it is inevitable that the opportunity provided by the civil law for a victim to recover compensatory damages must be examined. That is, civil litigation and any reforms to it must be considered at the same time as redress.Consultation processThe issues involved in redress and civil litigation are complex. The Royal Commission has undertaken an extensive program of consultation to ensure that we obtain and understand the views of those affected. We have published issues papers on: civil litigation; redress schemes; statutory victims of crime compensation schemes; and Towards Healing. We have also held a coordinated program of roundtables involving governments, institutions, survivors and others. This consultation program provided us with considerable assistance in developing the Consultation Paper.

Our work on redress and civil litigation has also been informed by the Royal Commission’s work in private sessions and public hearings.

Commissioners have now spoken with more than 3,200 survivors in private sessions. Each private session reveals a unique personal story of betrayal of a child’s trust with, for many, life-long consequences. Many survivors speak of losing their childhood. Others speak of losing the benefits which come from a stable family and the rewards which come from personal and career achievements.

Many survivors also speak of the experiences they have had in seeking redress or pursuing civil litigation and of what they think would best help them to heal and live a productive and fulfilled life. These private sessions have helped us to understand many survivors’ views of redress and civil litigation processes as they have operated to date, and many survivors’ views of how they could be changed to better achieve ‘justice for victims’.
Evidence has been given about redress and compensation in many of our public hearings. Some of our public hearings have had a substantial focus on these issues. Case Studies in relation to the North Coast Children’s Home, the Catholic Church’s response to Mr John Ellis, and the Christian Brothers examined aspects of civil litigation in detail. The Case Studies relating to Mr John Ellis and the Christian Brothers also examined aspects of existing redress schemes, as did Case Studies in relation to Towards Healing, the Salvation Army, and the Melbourne Response. Case Studies in relation to The Parramatta Girls’ Training School and The Institution for Girls in Hay, the Retta Dixon Home, and Bethcar Children’s Home also examined circumstances where no redress was offered.
The Consultation Paper we released in January was informed by the public hearings and private sessions, and by the consultation program.
We have received considerable input from many interested persons in response to the Consultation Paper. We have received formal submissions from over 250 organisations and individuals, and we have received comments through the online form from approximately 100 organisations and individuals.
On behalf of the Commissions I express our appreciation to all of those who took time to give us their views and participate in our consultation program. We are grateful for all of their contributions.

We also greatly appreciate the contributions of all those who will speak at this public hearing, and the time they are giving in accepting the Royal Commission’s invitation to speak. We have not summonsed anyone to appear at this hearing, and all those who speak will be doing so voluntarily. We appreciate their willingness to assist us in our work.
This public hearing, and all of the responses we received to the Consultation Paper, will assist us in forming our final views and making our final report on redress and civil litigation, which we intend to do in the middle of this year.Invitations to speakIt is regrettable but inevitable that we could not invite everyone who has made a submission to speak at this public hearing. We could not invite even all of those who expressed a particular wish to speak. The approach we took to selecting who should speak is designed to ensure that those listening to the public hearing would hear: from governments, whose views are significant in assessing possible options for redress, including structure and funding; from survivor advocacy and support groups, who between them represent many survivors and broader groups of Forgotten Australians and Former Child Migrants; from groups who represent members of the Stolen Generations, and from organisations who have particular expertise in issues of importance to Aboriginal and Torres Strait Islander survivors; from a number of the largest faith-based institutions; and from other institutions that provide services to children.

We have also invited a number of people with expertise in counselling and psychological care to speak on a panel during this hearing. We were also able to include an organisation that advocates for children in out of home care, a number of legal organisations, the Insurance Council of Australia and some individuals who have had particular involvement in the operation of redress schemes.
There are many views and interests that need to be explored in this hearing. However, every submission responding to the Consultation Paper will be considered by the Royal Commission in developing our final report on redress and civil litigation. Unless they raise confidentiality or procedural fairness issues, all submissions will be published on the Royal Commission’s website. Any interested person will be able to read any of these submissions, regardless of whether the organisation that made the submission is speaking at this public hearing.
GovernmentsAs I have said, we are concerned to hear the views of governments. The Consultation Paper particularly sought governments’ views on a number of issues, including support for a single national redress scheme or state and territory-led schemes in which non-government institutions would also participate. The Consultation Paper also sought governments’ views on options for improving the provision of counselling and psychological care for survivors, and options for funding a redress scheme.

We received written submissions from the Commonwealth, New South Wales, Victoria, Western Australia, South Australia, Tasmania and the Northern Territory. We did not receive written submissions from Queensland or the Australian Capital Territory.

We invited each government to speak at this public hearing, including those governments that did not make written submissions. Victoria, South Australia and Tasmania have accepted our invitation, and we will hear from each of them over the next three days. The other six governments declined our invitation to speak.
The Consultation Paper discussed the strong support for a single national redress scheme expressed by many survivor advocacy and support groups and by many institutions. The Consultation Paper concluded that ‘the ideal position for survivors would be a single national redress scheme led by the Australian government and with the participation of state and territory governments and non-government institutions.’ However, the Consultation Paper also noted that ‘the ideal position will be difficult to reach if the Australian Government does not favour it or if the state and territory governments do not favour it.’
Submissions from state and territory governments have expressed a range of views, from support for participating in negotiations for a national scheme to opposition to a national scheme and unwillingness to participate in a state scheme with non-government organisations. As I said, we will hear further from three state governments during this public hearing.

The Commonwealth has not accepted our invitation to speak at this public hearing. Its written submission is published on the Royal Commission’s website.
It seems clear from the Commonwealth’s submission that it does not support a single national redress scheme. Its submission refers to a number of concerns that it has about the complexity, time and resources that would be required to establish a national scheme, and the potential overlap with or duplication of state and territory schemes. It suggests that the time required to negotiate a national scheme would be frustrating to survivors and would undermine community confidence in the outcomes of the Royal Commission’s work.
It also seems clear from the Commonwealth’s submission that it does not support an expansion of the public provision of counselling and psychological care for survivors, other than through improving survivors’ awareness of existing services and their confidence in those services.
Finally, in relation to funding arrangements, the Commonwealth submits that the Royal Commission should make recommendations that institutions must accept the legal, financial and moral responsibility for failing to protect children. The Commonwealth does not see itself as having a role as ‘funder of last resort’, and suggests that such a role would not be necessary if the redress scheme were designed to take account of the solvency of institutions and the resources available to them when the maximum payment available to any given claimant is set. These issues need further exploration.
The Commissioners are disappointed that, while our Terms of Reference suggest that the need for effective redress has been accepted by all governments, the structural approach that is overwhelmingly supported by survivor advocacy and support groups and many institutions as being most likely to ensure a just, fair and consistent outcome for all victims wherever they may have suffered abuse is not presently supported by the Commonwealth. That said, we welcome the Commonwealth’s view that institutions must accept the legal, financial and moral responsibility for failing to protect children. This will of course extend to the Commonwealth accepting responsibility for any children who were not protected while in the care of the Commonwealth Government.
Conduct of the hearingIt will be apparent that all six Commissioners are sitting for this public hearing. All Commissioners were involved in finalising the Consultation Paper, and we are all are responsible for determining the Royal Commission’s recommendations on these issues. It is important that all Commissioners have the opportunity to hear oral submissions from, and ask questions of, those invited to speak at this public hearing.
This hearing will operate a little differently from our previous public hearings. Apart from the panel on counselling and psychological care, each of the organisations or individuals speaking have been told that they will have ten minutes to speak to their written submissions without interruption - and they will be told when their ten minutes are up, if necessary. There will then be some ten minutes for those speaking to respond to questions asked by Commissioners and Counsel Assisting.



MY REMARKS

The following piece is an attempt to look at the issue from different angles.

“There can be no keener revelation of a society’s soul than the way it treats its children.” (Nelson Mandela)

There is another keen revelation of a society’s soul in the way it treats adults whom society has failed as children. Failed to protect. Failed to nurture. Failed to provide every opportunity for growth into a strong, resilient, confident, healthy, and productive member of society. In many cases, crippled, psychologically destroyed, or cruelly limited. A society that doesn’t care for such adults properly is not one that can call itself civilised.

Upon a person reaching the age of 18, most societies suddenly become somewhat harsh towards that human being. There is a tacit assumption that childhood has prepared the person for the wilderness, the complexity, and difficulties of adult life. In the case of those abused as children, this preparation has often not occurred. In a way, true and meaningful childhood has never really been experienced by those abused as children. Thinking of it that way, there is an unfinished job, and one that we ignore at our peril.

The job for a society that has failed to protect a child from abuse is to restart the clock, go back in time, and get it as right as it is possible to get it right, whatever the age of the adult survivor. The adult survivor must be given the same treatment that should have been provided in childhood – safety, security, the opportunity to safely make (repeated) mistakes as he or she learns and grows, assistance to develop his or her full potential, guidance in knowing how to have healthy and safe relationships with others, and the knowledge of how to live balanced, productive, and stable lives, among other things that may be missing.



We allow 18 years for development of a child before we say, for the most part, “Off you go. You’re on your own, kid.” At a minimum, we should therefore allow 18 years for development and support of an adult society failed in childhood. Longer, in fact, because there is also often the need to first undo damage done, such as to help a survivor unlearn maladaptive coping strategies he or she may have adopted or overcome limitations such as poor sleep, anxiety, trust problems, and so on, before going on to help a survivor navigate through life as strong and resilient an adult as possible. Longer, in fact, because the effects of abuse may re-emerge repeatedly throughout life as a person reaches
different life stages and challenges.

Think about a child learning to walk. We allow the child to stumble and fall and get up again as many times as it takes before the child learns to walk without falling. Adult survivors must be given the freedom and financial and other forms of security to stumble, fall, and get up again too. 


Institutions must bear the responsibility and costs of multiple attempts by survivors to grow strong, if necessary. If we truly love children unreservedly, and give them space and time to learn and grow, so we must love the adults they become unreservedly, and without time limits or restrictions on their progress towards achievement of their fullest potential.

Anyone who has loved or loves a survivor cannot fail to feel this way. In the popular fictional television programme ‘Cold Case’, which is about police investigations of very old criminal cases, adult characters’ faces morph into younger faces as the viewer is taken back in time to when the crime occurred.

If we love our children, if we believe that children are our future, if we believe that a child raised in a safe and loving environment will go on to better our society and is worth investing in without limit, so must we love and invest in those who missed out on what should have been taken for granted, and do whatever it takes to make things right for them now.

Justice delayed is justice denied – survivors need help now

The imperative to provide adequate redress is urgent.  I suggest to the Royal Commission and any other governmental agency following its progress that while it is important to get redress right, there is also a need for an emergency response now, while working out more details later. The immediate and pressing needs of survivors exist now, and can’t wait to be addressed until possibly years before the Royal Commission’s recommendations are or are not implemented by whatever government is in power. The longer it is before the needs of survivors are addressed, the more the damage to survivors compounds, the more likely it is that survivors will die before seeing justice or getting a chance at a better life, and the more likely it is that families of deceased survivors will have to live with the pain of never having seen their loved ones see justice and experience the peace and healing that only true justice and care can deliver.
At the bare minimum, governments need to ensure provision of unlimited, free counselling to survivors with any provider of their choice. They will need this to participate in any redress scheme that may come out of the Royal Commission anyway, because participation in it will be, in many cases, extremely difficult in its own way, whether because it means having to revisit past traumas, speak to strangers about abuses suffered, or other factors. Other health needs must be addressed just as urgently. In addition to mental health needs, survivors often have serious physical health problems that are compounding daily in their effects on the bodies of survivors. The promised Gold Card for Forgotten Australians still hasn’t been delivered, causing enormous distress to those whose hopes were raised and dashed. It would be good to see it delivered not just for Forgotten Australians, but all survivors.

The need to talk benefits not just costs – language matters

Redress should not be framed as involving a cost to society. It is vital that it doesn’t, particularly in an economic and political environment in which governments are looking to cut costs and avoid commitments to new expenditures. I am slightly disappointed in the actuarial modelling commissioned for the Royal Commission in the sense an opportunity was missed to perform thorough research firmly grounded in economic modelling best practice to show both costs and benefits. Economic modelling that I believe would have demonstrated, beyond a shadow of a doubt, that redress is not really a matter of cost, but rather a matter of investment, an investment that would yield multiple returns per dollar expended.

While some survivors reach great heights in society, whether publicly or privately, in terms of what they contribute to society’s well being, I believe that they could all contribute even more if they were cared for properly, properly compensated, and given the opportunity to show what they could have been were their childhoods not scarred by abuse. The benefits to society would accrue in the form of things such as higher gross domestic products per annum, increased tax revenues, reduced welfare expenditure, second and third generations less negatively affected by caregivers’ childhood abuses, and stronger and more resilient communities, among other things. Some of these things can be quantified quite easily, some less easily, but they can be quantified. I hope the Royal Commission or some other body will at some stage endeavor to re-examine the approach that has been taken to modelling redress by performing a thorough cost-benefit analysis of redress. I would like to see some estimation of the cost of not properly compensating and caring for victims and their families. It may mean the difference between the Royal Commission’s recommendations being accepted or rejected, particularly if the economic environment in a few years from now is even worse than it is now.

Redress is not a one-off thing – it should be a lifelong commitment to meeting the needs of survivors.

I believe strongly that any concept of redress must involve lifelong commitment to the needs of survivors if we are to be consistent about our belief in the worth of nurturing and protecting people through childhood. And no, it doesn’t matter that we are talking about quite different time periods when we think about raising a child properly and fixing things for a child who was not. Yes, from one, somewhat brutal standpoint, society has more years to enjoy the fruits of a young adult who’s been raised well throughout childhood, but it would be not only brutal but fallacious to assume that just because an adult survivor may only have a fraction of the years ahead of them than that of an 18-year-old, they necessarily have less to offer, less to contribute.

Even if we think about the case of, say, a survivor who, for the sake of argument, is so badly damaged by what happened in childhood that they may never re-join the workforce, or may be too old to do so, but who is helped, this person still has something to offer, even if it’s in the ability to share the wisdom of his or her experiences and help younger generations flourish in ways that the survivor did not. Before my father died, for example, he used to speak excitedly about how he planned to help his grandchild’s language development by ensuring that he learned his Latin roots early on in his studies.

When an implicit social contract is broken, the full costs must be paid

Children cannot generally enter into legal contracts. Yet, in a way, society enters into something of an implicit contract with a newborn baby. We say, in a way, to that baby that we will teach, guide, nurture, and generally prepare him or her for adulthood. At the very minimum, we warrant that we will protect the baby from harm throughout ensuing infancy and childhood.

Institutions are often quite unabashed in making such promises. Those comprising groups such as Forgotten Australians lived through a time when society was being told quite baldly by institutions that these children were being cared for by people who would not only not harm them, but also help them become the best they could be. Money flowed accordingly to these institutions, whether from imposts upon parents, donations from the public, contributions from the taxpayer, or the profits from children exploited through child slave labour horribly repackaged as some sort of noble exercise in preparing children for adult life.

Promises of this type continue to be made by institutions, often most explicitly by those who profit the most from the business of helping to raise children. I drive regularly past a quite crude billboard in my area advertising a private girls’ school that boasts some ridiculously high rate of academic achievement – the billboard quotes the percentage of girls who obtain an OP score (a score of academic achievement used to determine entry to tertiary study in Queensland, Australia) of better than 5 (a rank that admits young people to most courses preparing them for lives as, generally, high-earning professionals). Another tawdry billboard depicts a beaming young model in the school’s uniform with the accompanying caption “Aspiring oncologist.” The promises are thinly veiled.

We allow children to be processed through the foster system, which also involves payment of money to carers, on the promise that where they end up is safe and conducive to the production of strong,un-traumatized, resilient adults. Those who send their children to public schools pay taxes that contribute to the education and development of their children. I could give many more examples, but hopefully the point is made. Institutions, including governments, that have made an implicit social contract with a child to do him or her no harm, and provide an environment in which that child may thrive, but that have failed to do so, have a responsibility to do whatever it takes to make the contract good. They can’t run and hide when the child who’s been failed turns up again as a struggling adult.

Make the polluters pay

“We have a responsibility as a state to protect our most vulnerable citizens: our children, seniors, people with disabilities. That is our moral obligation. But there is an economic justification too –
we all pay when the basic needs of our citizens are unmet.” (John Lynch)

Redress must involve, at a minimum, payment of the full costs of the consequences of abuse to survivors and those who support them or whose lives are otherwise affected by the abuse survivors suffered. We need to ask: what are the costs of not having forced institutions to pay for what they have done; who is currently bearing these costs; and is the ‘burden’ (I place inverted commas around this term because I am conscious of its possible perception that I am saying that loving someone who’s been abused is all about pain) being distributed fairly? Because those costs are already being borne by someone, least often and indeed disgustingly poorly, by responsible institutions.

Obviously, costs are usually been borne with love and compassion by those who care for survivors, but that doesn’t mean carers’ needs and the needs of other people in survivors’ lives don’t matter and that their losses, if they have occurred, don’t matter, and it doesn’t mean that these people shouldn’t be compensated too. And, just as obviously, survivors will be doing the best they can, but in most cases could do so much better if they had not been abused or if their needs as adults had been met much earlier than the typical 20-year-plus time it takes for them to even think much about the abuse they suffered or to understand even partially the effects it has had upon them. And, for the rest of society, we need to understand that there’s a cost too – a cost in the form of lost potential not just of the survivor but also often of others in the penumbra of people around the survivor. This may be in the form of a ‘deadweight loss’ to society – a cost that no-one can recover.

This also leads me, incidentally, to the point that unless the full cost, the true cost, of abuse by an institution is forced back upon the institution, we have a problem of incentive. Yes, criminal sanctions are critical, but they must exist in tandem with economic sanctions, since so many institutions care most about their financial bottom lines. Redress in the arena of only a few hundred thousand dollars simply doesn’t come close to meeting the types of losses I have calculated to have been incurred by survivors I have known, or the losses of their families. We say “make the polluters pay.” Why should institutions be any different? Redress set at ridiculously low levels (anything below around half a million dollars is unlikely to come close to the average losses involved in a single instance of child abuse, if my admittedly limited observations are representative of a greater whole) doesn’t meet this objective of making those responsible bear the costs. Worse, it raises the ugly possibility of institutions simply building in small and predictable redress payments as part of their ongoing costs of doing business, and as part of what might harshly be described as a policy of ‘manageable and acceptable fault rates’ (i.e., child abuse victims), frequent protestations by most institutions of having “zero tolerance” for child abuse notwithstanding. It is much better that they should have to face the possibility of potentially extremely large payments in the future if they don’t get things right. If the threat of criminal sanctions, if moral considerations, if love and respect for children and other things that are supposed to stop them letting children get hurt aren’t working, perhaps the looming threat of insolvency or enormous costs in the future may finally get their attention?

Fairness to institutions?

In recent discussions with a senior member of the Salvation Army in Australia, I was told that I needed to have regard to “organisational resources” in payments to victims. I snapped back that if the total cost inflicted upon society from an institution’s failure to protect children was greater than its organisational resources, perhaps it didn’t have a moral right to exist anymore. I didn’t add at the time, but should have, that this was even more compelling, to my mind, if the institution had had decades to get things right but had failed to do so. A stitch in time saves nine. If the costs of redress are high, institutions have only themselves to blame, and if insolvency is the outcome of making things right, so be it. There are institutions that haven’t abused children on the scale of those institutions whose failings are now getting to be quite well known. If proper redress to victims means the ultimate dissolution of the institution responsible, society won’t lose out. There are plenty of organisations doing what culpable institutions call ‘good works’ that don’t hurt children and haven’t done so. Let resources flow to them. The quantum of ‘good works’ occurring in our society will remain in line with the goodwill, charitable impulses, and giving ability of people who haven’t much time to do such ‘good works’ but would like to pay something to see others do them. Abusing institutions that fall back on ‘good works’ defenses want us to forget this. Let’s not.

All abuse matters

As a final note, I would like to state the hope that the Royal Commission will at least remark upon the need to offer redress to all victims of child abuse, not only those who experienced sexual abuse.

While the terms of reference may limit the Royal Commission in what it can recommend, it is free I think to comment upon matters outside its scope, and anything it may say about the need to compensate survivors and their families in situations of all types of child abuse would be influential.





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