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.
Victoria and New South Wales were the first states to get on board with the National Redress Scheme (NRS) which is being established by the Federal Government following recommendations by the Royal Commission into Child Sex Abuse and is due to commence on 1 July 2018.
Under the Victorian National Redress Scheme for Institutional Child Sexual Abuse (Commonwealth Powers) Bill 2018, the Government will refer powers to the Commonwealth to ensure that Victorian state institutions participate in the scheme. As part of the scheme, eligible survivors of institutional child sexual abuse will be able to seek a range of redress options including monetary payments of up to $150,000, access to counselling services, and direct personal responses including an apology from the institutions or organisations responsible for their abuse.
The government will provide $500,000 in 2018-19 to transfer custody of the records of both the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into the Protection and Detention of Children in the Northern Territory to the Attorney-General’s Department.
Dan Tehan, the Minister responsible for the National Redress Scheme (NRS) tabled legislation to establish the scheme to federal parliament on Wednesday coinciding with the Victorian Government’s legislation to refer powers which was tabled in Victorian parliament earlier this week.
Angela Sdrinis Legal is currently acting for victims of alleged sexual assaults in an Ashram. The five plaintiffs in these applications have brought proceedings in the County Court to recover damages for alleged sexual assault by the second named defendant whilst they were at an ashram conducted by the first named defendant.
The Tasmanian Government announced on 22 May 2018 that it will be opting into the National Redress Scheme (NRS) and that as of 1 July 2018 limitation periods with respect to child abuse claims, which has stood in the way of survivors applying to the courts for damages, will be removed.
The UK Independent Inquiry Into Child Abuse (IICSA) Recommends a Compensation Scheme for Child Migrants
In an interim report, IICSA has recommended to the UK Government that it set up a financial redress scheme for survivors of the Child Migrant Programme, which resulted in 130,000 British children were forcibly deported to Australia and other Commonwealth countries where they were subjected to hard labour and in many cases experienced severe physical and sexual abuse.
The National Redress Scheme (NRS) has commenced although it is not really a national scheme as yet because the only states which have passed legislation to refer powers to the Commonwealth to allow participation in the scheme are Victoria and New South Wales. There are also a number of very significant church and other bodies which have not “opted in” including the Jehovah’s Witnesses, the Mormons and many other religious and non religious organisations.
On 25 July 2018, the Government introduced a bill to Parliament acknowledging that in the past, children who were made Wards of the State were charged with being in need of protection and that these charges appeared on a child’s criminal record. This meant that a child could have a criminal record for charges such as ‘being in moral danger,’ or ‘being exposed,’ – effectively being criminalised for being vulnerable. This is because the Victorian child welfare system and the criminal justice system for dealing with young offenders were not clearly differentiated, so protection orders were recorded on criminal histories. It was only in 1992 that the two systems were completely separated.
Angela Sdrinis Legal acts for a number of defence force personnel who suffered historical sexual and/or physical abuse in the armed forces. Many of those who suffered abuse as minors (Army Apprentices and Cadets) have viable common law claims for damages because of the abolition of limitation periods.
The Tasmanian government is to be commended for following the lead of South Australia and the ACT in tabling legislation allowing for harsh penalties for priests who fail to report suspected child abuse including disclosures that are made in the confessional.
Compensation Scheme for Victims of Sexual Harassment and Predatory Behaviour within the Police Force
Catholic clergy commit six times as much abuse as all other churches combined and he said that this was a conservative estimate.
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