24 November 2020
Tasmanian Government announces Commission of Inquiry into Child Sex Abuse
The Tasmanian Government largely avoided scrutiny by the Royal Commission Into Child Sex Abuse (RC) which commenced in 2012 and was completed in 2017. The RC looked at responses to historical child abuse across the nation and despite running for 5 years it was impossible for it to closely examine every state and every organisation in Australia. This meant that in Tasmania, only one case study dealt exclusively with a Tasmanian institution (the Hutchins school) although other case studies included branches of wider organisations which were in Tasmania (the CEBS case study). Whilst other case studies and the RC recommendations would have given guidance to the Tasmanian Government on action going forward, the dark past of institutional child abuse in Tasmanian government agencies was not examined.
To the Government’s credit, it has moved on the bulk of the recommendations made by the RC regarding legislative changes and has joined the National Redress Scheme. However, despite adopting legislative changes which now allow survivors of historical sex abuse to get their matters into court, the Government has been slow to deal with these claims and has taken a legalistic and adversarial approach to civil claims which has not been at all survivor focussed.
The Commission of Inquiry (which is essentially the Tasmanian version of a Royal Commission) will have the powers to delve into the cover ups, the moving of paedophiles between schools and other Government agencies and the failures to adequately deal with perpetrators who we now know operated in Tasmania for decades. It is important that this happen because not only do the perpetrators need to be brought to account, so do those who protected them.
For this to effectively occur, the Commission should have wide ranging terms of reference which allow for specific case studies to be examined. The recently announced, and now defunct, inquiry into the Education Department had terms of reference which did not allow for individual case studies. We know from the RC that closely examining individual case studies firstly allowed for direct accountability but secondly created the backdrop to inform the RC and Governments on what changes were necessary to be made to deal with past wrongdoings and to protect children going forward.
Angela Sdrinis Legal is in a position to provide evidence to the Commission of multiple serial perpetrators. We trust that others will take this opportunity to present their stories and evidence to allow the State to move forward in a positive way. We know how important “truth telling” is for recovery, not just of the individuals who were abused, but to finally shine a light on a very dark aspect of Tasmania’s history.
The important thing is for this Government not to use the Inquiry as another talk fest the purpose of which is to delay accountability. The Inquiry should, as did the RC, hand down interim reports and recommendations as it proceeds and ensure that the government agencies that it is scrutinising make the changes that are so desperately needed so that the cancer of the abuse of children which has clearly plagued Australian society is purged in Tasmania as far as it is possible to do so.
20 November 2020
As a lawyer representing people who allege that as children they were abused in the care of the State of Tasmania, I felt incredibly disappointed to read the Solicitor General’s comments in the Mercury on 12 November 2020 under the heading “Top Law Man Hits at Compo in Media.”
It is the case that the media plays an important role in our society in highlighting issues particularly for the poor and disempowered and in fact it was media pressure in conjunction with survivors and lawyers taking action that resulted in the Royal Commission into Child Abuse. It is also important that the media hold Governments to account. For example, on 3 February 2020 a Government spokesperson said in this paper, “the Government is currently exploring options for streamlining civil settlement processes including that the processes are trauma informed” and yet 9 months later no such processes have been established. This is despite my firm first writing to the Minister for Human Services about this issue on 20 September 2015 and several follow up letters and discussions with the Solicitor General’s office. Because of the lack of progress in establishing a settlement protocol, my firm has begun issuing abuse claims in the Tasmanian Supreme Court and will continue to do so.
To the Government’s credit, and as a result of the Royal Commission, there have been a raft of changes to legislation which have been passed in Tasmania which finally enable victims of historical abuse to sue for damages and yet the Solicitor General is complaining that survivors are choosing this course of action rather than opting for the redress scheme, which has a maximum payout of $150,000, whilst at the same time he acknowledges that civil action has resulted in substantial payouts in other states. Why wouldn’t survivors pursue common law claims if they think they can do better and besides what was the point of those legislative changes to enable historical abuse claims to be litigated if survivors should all just pursue redress claims anyway?
Further, where we have issued matters in court, we are routinely receiving requests to provide further and better particulars regarding exact dates and details of alleged abuse (which the Royal Commission acknowledged was very difficult for most victims of historical abuse to do) and to provide precise details of the nature of any duty owed by the State to the children in its care. Whilst we accept of course that the Government is entitled to evidence of abuse and in some more complex matters details of the exact nature of the duty of care, what we are saying on our clients’ behalves is that in the first instance the Tasmanian Government should take as a given that it owed a duty of care to children abused as wards or at school and where there is evidence of abuse it should try and deal with these cases in a trauma informed out of court settlement process, as do most other state Governments, rather than forcing survivors to engage in costly legal arguments about duty of care and other preliminary issues.
We are not saying the Government should not have time to appropriately investigate claims. Indeed, we have been pressing the Government to engage in a settlement protocol which allows for an early exchange of material, timelines for investigation and then an opportunity to attempt to resolve claims on an alternative dispute resolution basis.
If following that process, matters are unable to be resolved, the survivor has the option to litigate or apply to the Redress Scheme. This is a model that has worked well in Victoria and other jurisdictions and has ultimately saved taxpayers considerable amounts in legal costs and has delivered a third option to survivors who would otherwise be forced to accept the modest amounts available via the redress scheme or to engage in a long, expensive, traumatic and stressful court process.
In conclusion, despite the Solicitor General’s comments, his office has recently commenced engaging with my office with a view to finally establishing a much needed and appropriate settlement protocol which is a move that I welcome. I look forward to continuing to engage with the Solicitor General’s Office and the Tasmanian Government to deliver positive outcomes to our very vulnerable and deserving client group. However, if ultimately these discussions do not bear fruit, I will not apologise for again raising the issue in the media or in any other appropriate forum. Further we will have no choice but to protect our clients’ interests by continuing to litigate.
The Tasmanian Government has committed $7m dollars to upgrade the Ashley Youth Detention Centre (AYDC) amongst growing calls to close the AYDC altogether (ABC news 14 December 2020).
WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) is the first case in Victoria to be heard under a law passed in September 2019 allowing deeds to be set aside ‘where it is just and reasonable to do so.’
If the plaintiff (a prisoner or former prisoner) is awarded damages of greater than $10,000, the defendant institution must seek Court approval to hold the compensation in the Prisoner Quarantine Fund for a period of 12 months following the publication in the Government Gazette regarding the payment.
If you have been a victim of abuse whilst a student at Our Lady of Mercy College, we strongly recommend that you receive advice as to your rights before contacting the school.
Section 4 was enacted in 1991, making it an offence to publish information identifying a victim of sexual assault without that person’s consent. In February 2020, amendments to the Act took effect which had contradictory effects on different groups for victims.
For child sex offences, section 5AA of the Sentencing Act requires a court to disregard an offender’s previous good character or lack of convictions, if the court is satisfied this was of assistance in the commission of the offence.
27 August 2020: Developments in institutional liability for sexual assault: SMA v John XXIII College (No.2)  ACTSC 211
The law around organisational liability for sexual assaults continues to evolve following the Royal Commission into Institutional Child Sexual Abuse.
Even though AS Legal’s Melbourne office is now physically closed due to Stage 4 COVID restrictions, business is continuing as usual. Our reception is still operating as is our firstname.lastname@example.org email address for general inquiries.
29 July 2020: Update on the National Redress Scheme: Criticism by Federal Opposition and Second Year Anniversary Independent Review
The NRS has received sharp criticism from the Federal Opposition with respect to the operation of the Scheme and the delays in victims receiving compensation.
23 July 2020: Paedophile Priest Supported, Befriended and Funded by the Catholic Archbishop of Melbourne
The story of Father Ronald Pickering exemplifies the very worst of the Catholic Church’s handling of child sexual abuse allegations. Pickering was a prolific sexual offender for close to three decades from the early 1960s to early 1990s in various parishes around Melbourne.
The Minister for Aboriginal Affairs announced that the Government would begin work immediately in partnership with the First People’s Assembly to determine the terms of reference and how the process will work. This is a vital first step towards a long awaited treaty with our first Nation’s people.
Sometimes our clients prefer to stay with Angela Sdrinis Legal to do a redress claim rather than going to a new law firm, but we always provide our clients with the option of Knowmore
19 June 2020: Tasmania introduces legislative reforms to prevent institutional child abuse and improve access to justice for survivors
The Justice Legislation Amendment (Organisational Liability for Child Abuse) Act 2019 (the “Act”) came into force on 1 May 2020.
5 June 2020: A historic reform to NSW law will see victims of child sexual assault get a “fairer go in court”, in a nationwide first
The announcement comes in response to the Royal Commission into Institutional Responses Child Sexual Abuse who conducted a major empirical study into how juries reason when deliberating on multiple counts of child sexual abuse.
The Sentencing Act 1991 allows victims to seek compensation directly from the offender where that person has been found guilty of an offence which caused the victim injury. The person applying for compensation (‘the applicant’) must make the application within 12 months of the offender being found guilty or convicted, although an applicant can apply for an extension of time.
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