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The long road to right the wrongs of the past

Opinion

Providing justice for victims of institutional child sex abuse has been a long and winding journey  – and we’re not quite there yet, writes Law Council of Australia president Morry Bailes.

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How can we begin to right the wrongs of the past?

How can we even begin to mend the unfathomable trauma experienced by so many survivors of abuse and neglect, at the hands of the very people and institutions established to protect them?

The passage of legislation in the federal parliament which has paved the way for an Australian-first National Redress Scheme for survivors of institutional child sexual abuse is monumental in considering how the nation can begin to heal the pain of the past and the horror inflicted upon the young, the vulnerable, the most innocent members of our society.

Access to redress is a vital first step toward acknowledging that Australia, and its institutions, failed to protect many children from child sexual abuse.

We have long understood that survivors often experience long-lasting trauma, and in many cases, have not been able to receive appropriate redress, compensation or counselling. The redress scheme provides an opportunity to fix this with a just response.

However, redress could not have occurred without the five-year Royal Commission into Institutional Responses to Child Sexual Abuse and the six commissioners who, undoubtedly, bore a heavy weight.

Prior to the announcement of the Royal Commission in 2012, there had been repeated calls for governments to respond to the problem of child sexual abuse in institutional contexts – more than 300 reports over 28 years.

These earlier inquiries considered child sexual abuse in various situations, including institutional care, foster care, child migration, and the child protection system.

One might be forgiven then for wondering exactly why it took so long to implement a full-scale review, such as that of the royal commission, and, where possible, the removal of the legal barriers – including statutes of limitations and the unincorporated status of some religious and charitable organisations – to allow those affected to seek legal redress and access justice after all these years.

Then Prime Minister, Julia Gillard, said the royal commission was established to:

One might suggest the royal commission has over-achieved in these regards, and even that it had been worth the wait.

The royal commission received more than 39,700 calls from survivors detailing abuse and more than 23,900 pieces of correspondence. Just shy of 7000 survivors spoke to the commissioners in private hearings. There were 57 public hearings, held over 400 days, where more than 1200 witnesses provided their accounts.

The scale and enormity of the abuse suffered by survivors could no longer be ignored.

More than 2252 matters raised during these consultations were referred to police for investigation, some at the expressed wish of survivors, others in the interests of protecting further children from potential harm. Many charges have been laid.

The impact of institutional child sexual abuse cannot be overlooked. The survivors themselves, who battle for many years with depression, substance abuse, relationship breakdown and suicide, were handed a lifeline with the royal commission.

For many survivors it was the first time they were empowered to speak their truth, bringing peace to some after many years of torment.

The impact of abuse extends well beyond survivors. Their families, the whistleblowers and staff in institutions were also given a voice, an important platform from which to share the direct and indirect effects of child sexual abuse in institutions.

Incarceration, for a variety of reasons, is high among survivors of child sexual abuse. The commission spoke with 713 survivors from prison, during private hearings. These prisoners, incarcerated survivors, represented 10.4 per cent of all survivors who spoke to the commission in private sessions.

The courage of those who were able to come forward and share their experiences has meant survivors will have access to the landmark National Redress Scheme.

Under the scheme survivors will be able to apply for:

Is it enough? Can redress right the wrongs of the past? One would think not, however, the scheme will go some way toward ensuring survivors are able to access compensation and recognition of their significant trauma, providing access to justice.

Given the number of incarcerated survivors who spoke to the commission, it is disappointing the scheme excludes those with a serious criminal conviction – those who have been in prison for five years or more.

The link between early childhood trauma – particularly a trauma as deeply-seeded and horrific as child sexual abuse – and contact with the justice system during later life must be better understood.

Does the rehabilitated offender, who also suffered at the hands of the institutions designed to protect them, not deserve the same access or cause to redress? Some would say no; I might respectfully suggest otherwise.

I’d also respectfully suggest the counselling and psychological services offered under the scheme do not extend far enough, especially for those survivors living in rural regional and remote Australia where services are difficult to obtain. In these settings, the $5000 capped payment would not go very far.

Furthermore, counselling services ought to be made available for the life of the survivor and extended to the family of a deceased victim. Traumatic events can manifest themselves in a multitude of ways, throughout the course of a person’s lifetime. The need for counselling services may be ongoing.

The decision to limit the scheme to Australian citizens and permanent residents, potentially denies former child migrants and those that have been in immigration detention from accessing redress, an area the Royal Commission also found to be in great need of redress.

While redress offers an exclusive opportunity to respond to past wrongs inflicted upon survivors, there are areas where the legislative framework has deviated from the recommendations of the royal commission, without reasonable justification.

Nevertheless, we should applaud the level of leadership shown by former Prime Minister Gillard in establishing the royal commission, the work of the commission, the strength and courage shown by the survivors who told their stories, and the work of the Commonwealth and state Attorneys-General in making this scheme a reality.

The Prime Minister’s national apology to survivors of institutional child sexual abuse on October 22, 2018, will provide further opportunity for redress.

An apology is a very meaningful act, which can often be the first step in the healing process. However, that does not negate the need to ensure institutional abuse of children never happens again.

For help or information phone Lifeline on 131 114 or beyondblue 1300 224 636.

Morry Bailes is the managing partner at Tindall Gask Bentley Lawyers, president of the Law Council of Australia and is a past president of the Law Society of SA. The opinions expressed in this column are his own.

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