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.
Victims of child abuse have welcomed the Coalition’s commitment to implement recommendation 26.3 of the Betrayal of Trust report to abolish limitation periods in historical child abuse claims. A draft bill has been prepared and the current Government is seeking responses by 5th December 2014.
Anybody who has a legal problem usually suffers from a certain degree of anxiety and heightened stress levels. Clients who have suffered childhood sexual abuse often present with even higher levels of anxiety. Lawyers and other professionals who deal with victims of sexual abuse will say that these clients can require more support than is usually the case.
The Royal Commission has now conducted several damaging hearings into private and religious organisations which have been accused of allowing children to be sexually abused. There have been public hearings into the Catholic Church, the Salvation Army, YMCA and many others.
St Paul’s Boy’s Home, was an orphanage run by the Anglican Church between 1928 and 1979 in Newhaven, Phillip Island. It was established by the Mission of St James and St John. Many boys who attended there said that the physical environment was very suitable for boys and that activities included bush walking, bird watching, fishing and swimming. But like many orphanages of the 20th century, some of the staff who were involved in the “care” of the boys were cruel, sadistic and sexually abusive.
Earlier today in a public hearing Justice McLellan read a statement outlining some preliminary comments about redress for victims of institutional abuse. The Royal Commission (the Commission) also released a consultation paper on redress to which Angela Sdrinis Legal has been invited to respond.
In a wide ranging speech at the Victorian Law institute’s Conference of Council, Victoria’s Attorney General Martin Pakula confirmed that his Government was committed to implementing all of the recommendations of the Betrayal of Trust report. Mr Pakula pointed out that some of the recommendations regarding criminal sanctions had already been implemented. He said that some of the recommendations relating to changes that need to be made to the civil law were more complicated but that the...
One of the barriers to victims of child abuse having their civil claims heard in a court of law has been the Statute of Limitations which is a law which says that many victims’ claims for damages are out of time. Whilst it has always been possible for victims of historical abuse to apply for an extension of time, these applications are costly and the outcomes have been difficult to predict. Certainly the further you go back in time the less likely it has been that an extension of time will be granted.
The Labour Government is to be commended for abolishing limitation periods in child abuse cases. Hopefully this is the first of a tranch of legislative amendments to be introduced which will make it easier for victims of child abuse to pursue civil claims for damages in the courts.
COMMONWEALTH GOVERNMENT REFUSES TO COMMIT TO NATIONAL REDRESS SCHEME BUT VICTORIAN GOVERNMENT COMMITS TO REDRESS.
The Commonwealth Government chose to submit a 4 page document (http://www.childabuseroyalcommission.gov.au/policy-and-research/redress/submissions-on-redress-and-civil-litigation) in which it essentially abdicated all responsibility for the issue of child sex abuse in Australian society. The Commonwealth Government also chose not to appear before the Commission which further demonstrated the Abbot Government’s lack of commitment to the important work being done on behalf of victims of abuse. (http://www.abc.net.au/news/2015-03-25/child-abuse-royal-commissioners-disappointed-in/6348350)
The passing of this legislation is a credit to all Victorian Parliamentarians who gave the Bill bipartisan support. It is also a credit to the many advocates and campaigners who fought to for the establishment of the Victorian Parliamentary Inquiry and the Royal Commission into Institutional Child Abuse which have directly led to the passing of the Bill and which will hopefully open the way for further justice for victims of child abuse.
His Honour Justice Rush said the evidence demonstrated that the ‘school is in every sense a religious school” where students were completely isolated from everything beyond the community they were in. The Plaintiff’s evidence, which was not contested, was that Leiffer (the Principal) touched the Plaintiff on the breasts, sucked her breasts and digitally penetrated her. This abuse occurred at the Principal’s home, at the school and at school camps.
On Friday 9 October 2015, after listening to 3 days of harrowing testimony from survivors of child sex abuse in four Homes run by the Salvation Army Southern Territory namely Eden Park Boys Home in South Australia, Nedlands Children’s Home in Western Australia and the Box Hill Boys Home and the Bayswater Boys Home (1 & 2) in Victoria, Flloyd Tidd, the Territorial Commander of The Salvation Army Southern Territory again apologised on behalf of the Salvation Army to former residents of Salvation Army Homes. Commander Tidd said:
The Catholic Church’s Truth Justice and Healing Council (which was established to co-ordinate the Church’s response to the Royal Commission into Child Sex Abuse) has, on the eve of the further Royal Commission Public Hearings into the Melbourne and Ballarat Dioceses, published guidelines on how the Church should respond to civil claims for child sex abuse. http://www.tjhcouncil.org.au/media.aspx
In a previous blog on the Erlich decision (17 September 2015), the case of Lepore v NSW  HCA 4 was referred to in the context of vicarious liability of schools for the illegal conduct of employees including child sex abuse. The finding of vicarious liability generally requires that for an act to be considered within the course of employment, it must either be authorized, or be intimately connected, to an authorised act. The High Court found in Lepore v NSW  HCA 4 (6 February 2003) that the school in that case was not vicariously liable for the illegal conduct (sexual assaults) of its employee. However the door was left open for vicarious liability to be found where the “empowerment of the employee materially increased the risk of the sexual assault and hence the harm.”
The Federal Government has conceded that there is a culture of abuse in our Defence Forces. There was little choice but for the Government to make this concession following a damning report by DLA Piper into military abuse.
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