The community has come to acknowledge that fundamental wrongs have been committed in the past which have caused great trauma and lasting damage to many people.
Although a painful process, if a community is to move forward, it must understand where wrongs have occurred.
We have gathered information which would justify a public hearing into more than 1000 institutions. We obviously could not hold anywhere near that number of public inquiries.
Recommendations for change are being developed. When our task is complete we will have documented a period in Australian society when institutions failed the children in their care. Many well-intentioned people did not understand and did not respond to failures which should have been obvious. When an institution provided residential care it is common to find sexual abuse accompanied by high levels of physical abuse and exploitation of the children’s labour.
A picture is emerging that although sexual abuse of children is not confined in time, the conjunction of prevailing social attitudes to children and an unquestioning respect for authority of institutions by adults created the high risk environment in which thousands of children were abused. The norm that “children should be seen but not heard” provided the opportunity for some adults to abuse the power which their relationship with the child gave them. When the required silence of the child was accompanied by an unquestioning belief by adults in the integrity of the carer for the child, the power imbalance was entrenched to the inevitable detriment of many children. When, among adults who are given the power, there are people with an impaired psycho-sexual development, a volatile mix is created.
The problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and mechanisms which were available to regulate and control aberrant behaviour failed. This is readily understood when you consider the number of institutions where inadequate supervision and management practices have been revealed. Both individual institutions and governments failed in their responsibility to children. Where once silence was demanded, a child’s complaint, however tentative in its communication, must be heard and given an appropriate response.
The power of the institution must never again be allowed to silence a child or diminish the preparedness or capacity of adults to act to protect children.
The Royal Commission has been tasked with considering many issues, including “ensuring justice for victims through the provision of redress by institutions”. Our research and consultation in relation to redress is now well advanced and we anticipate publishing a paper in January which will invite public responses to this complex issue.
Everyone accepts that there should be an effective response available to all survivors. That response should include three elements. There should be an opportunity to engage with the institution where they were abused, receive a meaningful apology and be otherwise supported in a spiritually and culturally appropriate manner. Second, access to counselling or psychiatric care should be provided as they may need it during their lifetime. Third, a lump sum payment which marks the abuse and recognises the failure of the institution to keep the person safe as a child.
Some of the institutions have ceased to exist. Others have no money. Leaving survivors of some institutions without effective redress, but making it available to others, falls short of the goal of ensuring justice for victims. The community must look both to government and the institutions with the necessary resources to come together to provide a response which provides appropriate redress for all who have suffered sexual abuse as children in an institutional context.
We have heard of institutions that are reluctant to accept that the abuse happened when only one person has complained about the alleged offender. However, when others come forward, the institution in most cases readily accepts the allegations and negotiates redress payments or damages. Experience tells us that if a person acts in a particular manner on one occasion, given similar circumstances or opportunity, they are likely to act in the same manner again.
This assumption lies behind Chief Justice de Jersey’s discussion last year of the possibility of evidence being tendered in a criminal trial of the prior convictions of an accused. Judges in England can now admit this evidence. Chief Justice de Jersey, when commenting on this reform, asked whether a jury should be denied knowledge that an alleged rapist committed another rape six months earlier or that an accused charged with fraud has a string of similar convictions for dishonesty?
This is but one of the issues we must consider in the criminal justice component of our work.
There are many others and the commissioners look forward to engaging with the legal community, survivors and others with an interest in the criminal law to enable us to develop recommendations for government.
The Hon Justice Peter McClellan is the chairman of the Royal Commission into Institutional Responses to Child Sexual Abuse. This is an edited version of a speech he is to give on Monday.