CH 13

Survivors of Childhood Abuse

As an Independent I was able to help people. I could propose changes to the law to remedy problems. One of the first groups to contact me were the survivors of childhood abuse, who wanted a gap in the law addressed. Speaking of her service to survivors, American legislator Susana Martinez said in relation to her role as a prosecutor, “I took on a specialty that very few choose to pursue. I prosecuted child abuse and child homicide cases. Cases that were truly gut-wrenching. But standing up for those kids, being their voice for justice was the honor of a lifetime.”

Early in 2016 a gentleman called at Parliament House and asked to see me. I went downstairs and in the foyer I met Terry. A survivor of child abuse, Terry was in his early forties. He was well spoken and had the support of a number of survivor advocacy groups. The first issue he wanted addressed was the statute of limitations for people who had experienced childhood abuse.

The statute of limitations means that anyone wanting to take civil action for a wrong against them had three years from the date of that wrong to commence legal action. Many survivors were abused in their early teens (or earlier). This meant they became entitled to sue at the age of 18. However, most are reluctant to acknowledge or talk about their abuse before they reach 21 years of age. By then the window to take legal action had closed.

Terry stressed to me how many lives have been harmed by childhood abuse. He told me how so many people have resorted to drug abuse to dull the pain, and missed out on many of the opportunities of a normal life. He explained how financial compensation through legal action could help these victims turn their life around.

With equal passion, Terry outlined the result financial compensation would have on abusing institutions. He believed the prospect of significant financial cost would lead institutions to move more decisively to stop abuse within their organisation. I agreed with him.

Kelvin Johnston (Queensland Child Sexual Abuse Legislative Reform Council)
Kelvin Johnston (Queensland Child Sexual Abuse Legislative Reform Council)

The following month Terry and I met with Kelvin Johnston from the Queensland Child Sexual Abuse Legislative Reform Council. Together we planned a Bill to help survivors access justice.

Waiving the Statute of Limitations

The Bill I had drafted for them was the Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill 2016.  Introducing the Bill to Parliament I made the following comments:

“MR SPEAKER, I am here today to introduce to the Parliament a Bill on a matter of great importance to our society, especially to the welfare of our most precious asset – our children.

I speak in particular of the protection of children from harm, and the measures this Bill will introduce to provide, for the first time, a financial incentive for all our institutions to protect the children in their care.

It is the intent of this Bill that child protection will be not only be a moral imperative but will also make financial sense for institutions.

Sadly, many of our children have suffered for decades because some of our most trusted organisations have protected known sex offenders instead of children. Institutions have treated children who report abuse as more of a threat to their finances than the pedophiles they employ.

Institutions have seen appeals for help from victims as a threat rather than as an opportunity to care for human suffering. This legislation reverses this destructive dynamic. It protects children and enables institutions to begin to rebuild trust with their stakeholders and the public.

It has been to the collective shame of our society that we have seen over the past four years, harrowing evidence presented to the Royal Commission into Institutional Responses to Child Sexual Abuse.

Trusted institutions in our society have too often failed our children.
Children and adults have been routinely disbelieved or punished when they have tried to report abuse perpetrated by people in positions of power and trust. The legacy of these failures has been one of catastrophic damage to countless lives. Yet, until now, those harmed have not had effective access to the courts in this State.

Sadly, corporations and institutions such as schools were better off financially if they protected offenders and abandoned victimised children.  Their lawyers and insurers knew that very few abused children are able to seek compensation because of strict time limits which almost all victims cannot meet.

Evidence presented to the Royal Commission shows that when a child is sexually assaulted or violently physically assaulted the associated trauma creates significant psychological barriers that prevent that child from reporting the abuse or taking legal action until decades later.

Some of the reason for this delay is the innate psychological process of recovery. The delay is also compounded by the secrecy and power of the abusive institution, denial of the abuse and the delay in offering assistance with recovery.

Despite these impediments, victims must file a claim in Queensland before turning 21 years of age. If not, they are too late. They are out of time. They have no right to step into a court. The abusive institution therefore evades all legal consequence for their concealment of the criminal sexual and physical assault of children.

Only a handful of victims in Queensland have ever been able to seek fair compensation in this State for their suffering – to recover the costs of health care, education and economic loss – caused by abuse when they were children.

Painful as the Royal Commission’s work has been, it has yielded important and necessary recommendations for reform. These reforms will make our children safer and change the way institutions respond to victims who have the courage to report abuse.

The exposure of the scandal of institutional protection of offending has only been possible because courageous victims have given evidence. Many  of these victims have received paltry amounts of compensation in the past.  They were given small ex-gratia payments by institutions that denied the abuse occurred, or if the abuse did occur, the institution claims they were not liable.

This Bill, Mr Speaker, takes a significant step forward. It will allow those victims who were forced to make unfair settlements because of time limits, to have their deeds re-opened so the institution responsible is finally called to account. This is necessary because justice is not served by leaving injustices of the past in the past.

Justice requires that those victims who have courageously stepped forward to report offenders are finally vindicated and fairly compensated for the harm done to them.

The harm they suffer is a combination of direct harm caused by the abuse itself and in some cases equally, or in even greater measure, harm caused by being disbelieved and turned away for decades by institutions that knew about the abuse and yet failed to protect them.

Since its inception in 2013 the Royal Commission into Institutional Responses to Child Sexual Abuse has conducted 44 Case Studies, 11 formal Issues Papers, 8 formal Research Papers, 5669 Private Sessions, has received 18 598 written submissions, and referred 1,619 matters to authorities including police.

The Commission has heard extensive evidence of the actions of institutions to conceal crimes and the impact this has had on victims of abuse including extending emotional trauma well into their adult years and obstructing justice by denying a right of access to the court.

In 2015 the final recommendations in relation to time limits were handed down. The Redress and Civil Litigation Report recommended that civil statutory time limits should be removed as soon as possible with retrospective effect in all state and territories of Australia.

Making these recommendations into effective law in Queensland will provide justice for past, present and future victims of abuse. It will strengthen the institutions of our society by giving them a financial incentive to protect children in their care. Most importantly, it will make our children safer today and into the future.”

Before concluding I mentioned another amendment in my Bill in relation to the definition of child abuse:

In addition, the definition of child abuse in this Bill includes victims of both sexual abuse and serious physical abuse. This is in recognition that serious physical child abuse can cause just as damaging long term psychological scars as sexual abuse.

A Government Bill was introduced and debated in conjunction with mine at the second reading stage. There was debate late in the night about my amendment allowing the courts discretion to have unfair settlement set aside. But the government opposed giving courts the power to decide whether to reopen past deeds.

I was surprised but delighted when my amendment was passed  with the support of the LNP. They had helped me get this important amendment over the line. Opposition Leader Tim Nicholls said it was a proud day for the Queensland parliament. “We can’t erase or change the past but we can change the future,” he said.

Terry and Kelvin were so happy that the reform they had come to me about had been passed by the parliament. A senior MP said to me “Celebrate this. You don’t have many wins in this place.”. Kelvin Tony and I did celebrate for a few hours before calling it a day.

Mandatory Reporting of Abuse

While working in this space, it came to my attention that ‘ministers of religion’ were not bound by mandatory reporting under the Child Protection Act. I found this shocking and was determined to move the bill to make reporting of child abuse (or even suspected child abuse’ mandatory for ministers of religion. This meant taking  on the confessional and arguing ancient religious practice should not be allowed to put the welfare of children at risk.

Mandatory Reporting Bill

Early in 2017 I rose and moved the Child Protection and Education Legislation (Reporting of Abuse) Amendment Bill:

The Bill is very simple. It is a Bill to amend the Child Protection Act 1999 and the Education (General Provisions) Act 2006 to impose the obligation of mandatory reporting of sexual abuse (real or suspected) on ministers of religion. This Bill follows the widespread and worldwide revelations of childhood sexual abuse by religious representatives over decades.

The Bill amends s13E of the Child Protection Act 1999 (Mandatory reporting by persons engaged in particular work) to insert a new category of persons. Namely a minister of a religious denomination or society who performs work for, or has an association with, a school. Examples of a religious representative – include priest, pastor, bishop, rabbi, imam

Regarding the Education (General Provisions) Act 2006, in this Bill:
• Section 5 Amends s364 (Definitions for pt 10) insert religious representative means a minister of a religious denomination or society.
• Section 6 amends of s365 (Obligation to report sexual abuse of person under 18 years at State school) to impose a mandatory reporting requirement on a religious representative.
• Section 7 amends s365A (Obligation to report likely sexual abuse of person under 18 years at State school) to impose a mandatory reporting requirement on a religious representative.
• Section 8 amends s 366 (Obligation to report sexual abuse of person under 18 years at non-State school) to include religious representative.
• Section 9 amends s 366A (Obligation to report likely sexual abuse of person under 18 years at non-State school) to include religious representative.

The Bill is substantially uniform or complimentary with legislation in other states.

The Bill is consistent with Fundamental Legal Principles. The Bill does not include the confessional as an exception from mandatory reporting.

This Bill is not a direct response to the Royal Commission into Institutional Responses to Child Sexual Abuse. After all, the issue of abuse of children by church run institutions is a well-known and worldwide fact. The tragic conveyor-belt of witnesses before the Royal Commission only proved to confirm what we all know about institutional abuse. It ruined 1000s of lives and hurt 1000s of vulnerable children.

I am sure we all felt shock and deep sorrow at the staggering statistics that were produced by the commission. One in 14 Catholic clergy were accused of abuse by 4,444 victims over six decades. A terrible abuse of power and a terrible failure of our society. In some individual orders, that rate increased to a staggering one in five.

The report also stated that the Church was unwilling to investigate the reported abuse and also assisted in covering up the incidents after they were reported. Senior Counsel Gail Furness noted to the Commission, that “Children were ignored or worse, punished. Allegations were not investigated. Priests were moved. The parishes or communities to which they were moved knew nothing of their past. Documents were not kept or they were destroyed.”

The worst order, the St John of God brothers, had 40% of religious brothers accused of abuse. The consequences of failing to achieve fundamental structural and cultural change would be dire, not only for the protection of children, but for the fate of the Catholic Church itself. The Christian Brothers, shows that, through its slow descent into irrelevance. Twenty-two per cent of its clergy were alleged perpetrators, the second highest rate of any religious order in the country. More than 1,000 survivors made a claim against the Christian Brothers. Victims were, on average, 11 years old when they were abused. I cannot imagine the horror of this experience for a child.

The Christian Brothers has paid out the most of any Catholic order to survivors, making 763 payments worth $48.5m, an average payment of about $64,000. Its brand is all but gone from Australia, replaced by Edmund Rice Education Australia, an organisation with the Christian Brothers’ founder as its namesake. Christian Brothers’ Oceania leader, Peter Clinch, said there were only 280 brothers left Australia-wide, most of whom were 75 or above. The youngest is 53. They no longer seek new candidates for the order. Well Mr. Speaker, I for one say that is an overwhelmingly good thing.

Royal Commission witness, Christopher Geraghty wrote in 2013 “…. the Church has for centuries presumed that it can police its own borders, that it is an independent empire, not answerable to any secular power. It has had its own language, its own administration and training programmes, its own schools and universities, its own system of laws and regulations, its police force and lawyers, a developed list of penalties and its own courts and processes. A law unto itself—an organisation founded by God and answerable only to God.” Well Mr. Speaker, Such an attitude is no longer appropriate. In fact a majority of Australians find such an attitude thoroughly objectionable. It falls horribly short in protecting children.

It must be noted that Australia’s first saint, Mary McKillop took action against clergy abuse in 1871 and was excommunicated. One can only wonder how many children were abused by clergy in the 150 years that followed. Childhood is the one time in life that human beings are entitled to feel happy and carefree. It is vital we acknowledge the suffering of those who’ve had their lives ruined by childhood sexual assault that encouraged him to seek justice.

This place has also had members guilty of childhood sexual abuse. Prominent MPs at that! Those who are aware details of the Heiner affair know all too well that those in highest positions within government have not been above destroying evidence of childhood sexual abuse. And in that case, as in many others, justice was never served.

We are dealing here with people who, in their customs, traditions and behaviour proclaim a great knowledge of morality and what is right. Well I have never accepted that. My attitude in the past to many of these leaders, like George Pell and others was simply one of a lack of respect. Now it is one of disgust. It is high time they had a higher burden placed on them regarding mandatory reporting and this Bill does just that. It is high time religious representatives are subjected to the same rule of law as many of the other groups who work with children in schools.”

Unfortunately, the ALP set an unusually lengthy reporting back period for the relevant Committee to report back to Parliament on the Bill. The Premier called a state election before there was time for the Bill to come back for the second reading and vote. As a result, the Bill lapsed and disappeared into history along with the 56th  parliament.

Other Reference Material and Pictures

Laws removing child sexual abuse limitation periods passed – Brisbane Times

Child abuse claims_ Rival bills in Queensland Parliament to remove child abuse claim time limit – ABC News 

Kelvin Johnston_ Abuse still haunts Queensland man four decades on – ABC News

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