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After the royal commission, will churches and governments do the right thing?


There are already signs that governments and institutions will fail to respond adequately to the disturbing findings of the child abuse royal commission, writes Adelaide lawyer Mal Byrne.

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The Royal Commission into Institutional Responses to Child Sexual Abuse has closed and its final report has been handed to the Federal Government. However, the ink was barely dry on the report when representatives of the Ballarat Parish removed the ribbons that had been tied to the fence of St Patricks Cathedral for the last four years as a reminder to churchgoers and passers-by of the suffering of the numerous victims of childhood sexual abuse in that parish.

When I heard about this, it made me feel sad and fearful for the future. The royal commission has been a game changer for victims of child sexual abuse on a number of levels.  However, now that the commission has closed, what lies ahead?

In the end, all royal commissions can do is conduct investigations, provide reports and make recommendations. They can refer offenders to police for prosecutions, but they cannot conduct prosecutions. They can recommend that victims pursue compensation, but they cannot award compensation.  It is the duty of politicians, institutions and the general public to follow through, to make sure that change is effected to prevent a recurrence of the horrors of the last half a century so that victims and their families can access some kind of justice.  So when I heard that those parishioners had cut down those ribbons, I wondered to myself, ‘what message are these people sending to victims?’ Time to move on, to bury the hatchet, time to resume your silence? Is the church now going to muscle up and return to business as usual, retire the ribbons to a box and erase its ugly history?

Having met with scores of sexual abuse victims over the past four years and listened to their stories, I know that I would not have heard many of those stories if the royal commission did not exist. The royal commission has provided a sanctuary: a safe, sympathetic, and non-judgmental space for people to come forward and share the most horrific stories of brutality and degradation.

The private sessions that the royal commission held where a victim could meet a commissioner and tell his or her story one-on-one on audio tape were a vital part of its process.  On many occasions, the victim at that private session was sharing his orher story for the first time – a watershed moment in that person’s life. Just having a person listen to them and, most importantly, believe them, gave victims a sense of empowerment, for the first time in decades. The work of the commissioners was complemented by support services that provided counselling and a free legal advisory service that also referred victims to private solicitors where necessary.

The other vital part of the commission’s work was producing case studies. The reports released following those case studies shed light on mindboggling criminal behaviour. In some instances, the commission lifted the lid on what could only be described as organised crime and paedophile networks – behaviour completely contrary to the ethos of what churches are supposed to be. While much of the behaviour occurred decades ago, the reports showed that the culture of churches when receiving complaints from victims had changed little over those decades.

Churches have changed their behaviour when it comes to contemporary complaints of abuse.  There is more screening of clergy and staff and reports of abuse are taken seriously.  However, when it comes to responding to and compensating historical sexual abuse victims, my view is that the churches have been in damage control for four years and, now that the commission is closed, the gloves will come off once again and victims face re-traumatisation through new barriers that the church will place on them to gain justice and adequate compensation or redress.

The royal commission’s most significant report, other than its investigations into the institutional responses of various churches, was its report into Redress and Civil Litigation. The report recommended the introduction of a national redress scheme.  Legislation is currently before the Federal Parliament to introduce that national scheme in July 2018. That legislation has been sent off to a Parliamentary Committee, but the current version is a disappointment.

The royal commission recommended a scheme with a maximum redress payment a $200,000.  For reasons never explained, the Commonwealth has reduced that maximum to $150,000, even though the Commonwealth itself is only funding redress payments for victims who were abused in Commonwealth institutions or victims who have no other means of obtaining redress because the institution in which they were abused no longer exists.

The bulk of the heavy lifting in a national scheme would be on institutions where abuse is most prevalent, such as churches, charities and state governments. The Federal Government had no financial reason to water down the scheme and the fact that they have watered it down only fuels suspicions that they have succumbed to the influence of liable churches, charities and their insurers.

Another contentious provision denies redress to victims who have gone on to commit serious criminal offences. Eliminating compensation for those victims fails to recognise the impact that sexual abuse has on a child in its formative years. Many victims who were abused as children have rebelled against the church, rebelled against their families and authorities, turned to alcohol and drugs and ended up on the streets or in prison.

The definition of the abuse “in an institutional setting” will be vital in terms of eligibility for the scheme. That definition has not yet been clarified and I can see institutions and their legal representatives interpreting and exploiting that to their best advantage in terms of processing applications or where victim challenge the determinations of the Redress Panel. Social workers and lawyers are concerned that the scheme will treat victims like vanilla and everyone will be awarded approximately the same modest sum, well below the maximum.

However, the biggest failure of governments thus far is the failure to institute the civil litigation reforms recommended by the commission.  The principal recommendation was the removal of the statute of limitations for civil claims in all states. Currently, Queensland, New South Wales and Victoria have removed that barrier, but solicitors acting for the churches in those states are already fighting back by taking out stay applications to freeze or suspend as an alternative. The “Ellis defence” used by the Archdiocese of Sydney to deny John Ellis compensation remains in place across the country. Other reforms recommended by the commissioners have not been implemented. Are our politicians no better if not worse than the parishioners removing those ribbons from the fences?

The institutional sexual abuse inflicted on victims across our nation was a slow silent annihilation of generations of childhoods, of lost innocence. What happened to sexual abuse victims should never be forgotten, especially when only one in 20 abuse victims report that abuse.

What happens now is going to be up to politicians, institutions and the public who hold both to account. We have to keep the flame alive and ensure that victims’ needs are prioritised over the hip pockets of liable institutions and their insurers.

Mal Byrne is a partner at Tindall Gask Bentley Lawyers, and is an expert in institutional child sexual abuse claims, having represented many survivors.

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