CH 13

Survivors of Childhood Abuse

I went to law school. And I became 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.                               – Susana Martinez

As an Independent I was able to propose changes to the law to help others. One of the first groups to contact me were the survivors of childhood abuse.

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 a GP and had the support of a number of survivor advocacy groups. The first issue he wanted addressed was the statute of limitations.

The statute of limitations means that anyone wanting to take civil action for a wrong against them has 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. Their window to take legal action had nearly always closed before survivors had commenced an action to hold their abuser to account.

Terry stressed to me how many lives have been harmed and how many people have resorted to drug abuse and missed so many life opportunities that financial payment through legal action could help redress. Just as importantly, Terry believed that for abusing institutions, the prospect of significant financial cost would lead institutions to move more decisively to stop abuse within their doors.

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 points:

“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 pedophiles who 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.

Final recommendations
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.

Short title
The short title of this bill is the Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill 2016.

Objectives
The primary objectives of the Bill are to amend four existing Acts of this Parliament in simple but significant ways in compliance with the recommendations of the Royal Commission.

First objective
Firstly, the Bill will amend the Limitation of Actions Act 1974 to remove civil statutory time limits for personal injury actions arising from child abuse. The removal of time limits will take effect retrospectively and will apply to judgements and settlements that were made based on the application of time limits.

Second objective
This links with the second objective of the Bill which is to allow people who signed deeds of release to have their matters retried.

In order to remove the effect of time limits from all victims equally, it is necessary to allow victims who were forced to sign unfair settlements to have them re-opened.

Creating a legislated legal framework to remove past unjust settlements is essential. It must be remembered that these settlements were never the product of two equal parties negotiating on a level playing field. There was immense power and financial imbalance.

This is why it is not enough to just remove the time limits without removing the consequences of the unjust time limits.

If this is not done, then Queensland will not be compliant with the Royal Commission’s recommendations to remove all time limits to compensation for victims.

Safeguards
Important safeguards are incorporated into this part of the Bill. I hasten to assure honourable members of the House that this Bill will not result in a rush of litigation. Not every past case will be able to be re-opened:
• Any cases that were tried on their merits and any judgements given or settlements made for reasons other than the application of time limits, will not be able to be re-opened.
• Any cases that were brought in time (and in which time limits were therefore not a factor) will not be able to be re-opened.

I also hasten to assure honourable members of the House that damages costs will be manageable for defendants.
• Any cases that are reopened and in which a judge awards a greater damages quantum, will take into account the amount of any previous settlement or judgement.

Third objective
The third objective is to amend the Civil Proceedings Act 2011 to prevent an institution from having civil proceedings stayed on the basis of the passage of time, in instances where the institution was the cause of a delay in a victim filing a claim.

If the institutions that have, for so long, failed children now evade the consequences of years of misconduct, they will be, in effect, rewarded for concealing evidence and for using every possible legal tactic to evade responsibility.

Institutions will also be prevented from having civil proceedings stayed on the basis of seeking to question facts in instances where the institution has already admitted those facts, or an inquiry has made formal findings regarding those facts. This is simply to prevent institutions, or their insurers, from using vexatious legal proceedings to obstruct a victim’s access to justice.

Definition of child abuse
Mr Speaker, in addition to these four important amendments, this Bill seeks to bring equality before the law for victims of institutional abuse and non-institutional abuse.

The trauma of abuse that is experienced within the family can be of equal magnitude to that experienced in an institutional context. Rights of access to justice should therefore be the same for both groups of victims.

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.

The definition adopted in this legislation is the definition that is already legislated in New South Wales and is similar to Victoria thus bringing Queensland into agreement with the other states for this important definition.

Community support
The Bill I present today has strong community endorsement by major non-government organisations in the field of child abuse prevention, intervention and recovery as well as legal bodies and prominent legal firms. These experts are confronted daily by the lasting impact of child abuse on victims.

Achievement of policy objectives
Mr Speaker, I have introduced a piece of legislation that will achieve the policy objectives of removing unjust barriers to justice for a vulnerable section of our society who, until now, have been denied access to justice.

The simple amendments remove time limits, allow for past unfair settlements to be re-visited, restrict conditions in which defendants can stay proceedings and reinstate jury trials.

The amendments are reasonable and appropriate. Safeguards are included.

The amendments are required to achieve equal treatment of child abuse victims in this State.

The changes meet community expectations that the institutions in which they should be able to trust, and to which they entrust their children, will be accountable.

The changes fulfill the carefully-considered recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.  The provisions are measured and considered and do not over reach.

Wider personal injury law is shielded from these reforms as they specifically only apply to actions arising from child abuse. They do not apply to other personal injury claims.

They do not jeopardise other areas of law involving litigation or deeds.

The greatest safeguard is that the rules of evidence are not changed.

The reforms arising from this Bill simply act to give the adult survivor of child abuse the basic right of access to the court – they must still prove their case with all evidence properly tested.

These reforms do not diminish the responsibility upon claimants to prove their claims to the civil standard of proof.

A final safeguard is that existing caps on quantum of damages remain in effect.

Alternative ways of achieving policy objectives
There are no effective alternative ways to achieve the policy objectives other than through amendment of legislation.

It is not a reasonable alternative to place the burden on victims to apply to a court to revoke a deed in the absence of a legal framework for them to do so.

It is not acceptable to rely on a National Redress Scheme that does not yet exist, and that may never exist.

Victims of child abuse deserve greater certainty.
The Royal Commission recommends that all states and territories of Australia should act immediately. This reflects the Commission’s recognition that victims have carried the burden of the damage caused by child abuse for far too long already.

Victims deserve autonomy and to have equal rights of self determination as to whether they prefer to litigate or to participate in any Redress Scheme.

Estimated cost for government implementation
The cost of implementing the reforms is a necessary step for offenders and institutions to accept responsibility for their failures in the past and the tragic human toll of their previous decisions and actions.

The cost of litigation quantums for institutions will be manageable through the preservation of the institution’s insurance policies as a result of this Bill. Some State institutions will share liability under the amendments. Some of the liability will be carried by non-State institutions.

However, the moral imperative of this law reform justifies the cost.  Importantly, the cost should diminish over time as institutions implement child protection policies such as staff screening and mandatory reporting, thus decreasing the risk of abuse of children in their care.

Greater investment in child protection will become an investment in greater safety for our children, and in providing more prompt, caring responses to any future reports of child abuse.

Improved reporting and caring responses should result, in time, in lower insurance premiums for personal injury insurance cover. An institution will likely not be liable where they have acted promptly upon the reporting of abuse.

Most importantly, prompt institutional responses to incidents of child abuse will prevent subsequent abuse of large numbers of children. This further reduces an institution’s liability.

This will effectively reduce the heavy toll of human suffering and create a safer society for our children as well as reduced liability and financial cost to institutions.

The school and church in this case minimized the damage to the children and minimized their financial liability by ensuring the children were provided with psychological care and compensation. By removing the offender, they ensured that further children were not abused. In so doing they also naturally limit future liability.

This scenario of prompt reporting, responsive care for the victims and timely arrest and judicial processes together create the best possible hope of full recovery for victims and prevents further abuse and minimizes the financial cost to institutions and restores stakeholder trust.

Consider the comparison of this scenario with the experience of abuse victims of the past few decades who were not believed, were punished for reporting, and who watched as their offenders were protected, promoted and publicly lauded.

While it would always have been better for the initial abuse to have never happened, in this recent case it through the proper response of the institution, the best possible outcome for all parties was achieved.

It is possible. It can happen. This private members’ Bill is not an attack on our institutions – it is a means for them to take responsibility for the past and to begin rebuilding trust with stakeholders and the public.

In fact, this Bill will directly help private institutions like schools, churches, sporting and cultural organisations to act morally towards victims of abuse while still preserving their insurance policies.

The Bill will create a safer environment for our present and future generations.

This Bill is an opportunity for Queensland to lead the nation on important reforms for child protection and equity of access to justice for victims of abuse.”

While working in this space, it came to my attention that ‘ministers of religion’ were are 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

Mr. Speaker, I rise to move the Child Protection and Education Legislation (Reporting of Abuse) Amendment Bill 2017.

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, with Senior Counsel Gail Furness noting 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 and 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.”

Other Reference Material and Pictures

A Far Northern Life