The contours of an extended child abuse royal commission

By Frank Brennan
Eureka Street
July 2, 2014

http://www.eurekastreet.com.au/article.aspx?aeid=41650#.U7PcO_ldWSo

On Monday, the Royal Commission into Institutional Responses of Child Sexual Abuse produced its first interim report to government.  The commission has asked the Abbott Government for a two-year extension until December 2017 and an additional $104 million to complete its task.  

When Julia Gillard announced the federal royal commission in November 2012, I expressed some reservations about such a wide ranging inquiry, claiming that it would take at least five years, and I did not know that victims or the rest of us could wait that long to learn critical lessons about how institutions might improve their procedures for the protection of children.  

Justice McClellan is adamant that the job will take five years if it is to be done properly.  The good news is that the victims’ groups seem to think they can wait that long, as anything sooner would be rushed.  The bad news is that we will all be waiting another three and a half years for answers about how to restructure institutions ensuring the better protection of children and about how best to provide compensation and ongoing care for victims.

Before Prime Minister Gillard announced the commission, I said that the Catholic Church needed help, in part because there seemed to be a vast discrepancy in the statistics when it came to the number of abuse claims in the Catholic Church when compared with other Churches and institutions which care for vulnerable children.  The Commission has not yet come up with any answers or theories about the discrepancy.  But its own statistics are frightening and shaming.  The commission has provided a safe space for victims to come forward and tell their stories.  The commission refers to victims as survivors.  60% of the institutions where survivors reported being abused were faith-based institutions (1,033 of 1,719 institutions).  Where abuse occurred in a faith-based institution, 68% of survivors reported that the abuse occurred in a Catholic institution, while only 12% reported that the abuse occurred in an Anglican institution.  Other churches reported lesser figures.  No doubt there were many more Catholic institutions set up for vulnerable children.  But that goes nowhere close to providing a complete explanation for the shameful discrepancy.  It seems that about 40% of all victims who have come forward to tell their story were abused in institutions auspiced by the Catholic Church. When the royal commission was announced, Cardinal Pell said, 'We object to being described as the only cab on the rank.'  We are not the only cab, but we are the main one when it comes to reports of child sexual abuse within Australian institutions.

There are still many risks with a long running federal royal commission.  Many of us lived through the Royal Commission into Aboriginal Deaths in Custody.  I remember being in the office of a federal minister the week that commission was announced.  We agreed that the death rate of Aborigines in custody being 10 times the national average was directly related to the imprisonment rate of Aborigines being 10 times the national average.  The underlying causes for high indigenous imprisonment rates were not the sort of agenda items which would be solved by a royal commission.  Lots of research was undertaken.  Lots of public hearings were held.  Lots of state police were put through the wringer.  Lots of previous deaths and half baked coronial inquiries were scrutinised.  Lots of recommendations were made.  Indigenous imprisonment rates are higher today than they were before that royal commission was convened.  In 1991, Aborigines were 14% of the prison population.  By 2013, they were 26% of the prison population.  Royal commissioners may have extensive legal powers of inquiry but they have very limited capacity to influence outcomes.

When dealing with child abuse, state police forces and state child welfare departments are central.  There has to be real buy-in by them and their political masters if this royal commission is to deliver long term results.  State agencies still carry memories of the Aboriginal deaths royal commission and know that there is no magic panacea on offer.  On 16 June 2014, Commissioner McClellan convened a roundtable of state agencies and stakeholders to discuss Working with Children Checks.  Understandably the Commission would like a uniform national approach to this routine mechanism.  Progress on a national approach was so slight that the Commission, having issued a media release about the forthcoming roundtable, did not issue one after it to report outcomes.  We have seen lots of bishops and leaders of religious groups appearing before the royal commission.  We are yet to see any state premier, minister, or departmental head appear.  

The Commission needs to clarify what it actually has power to change or recommend, and to focus its activity more on looking for lessons rather than apportioning blame for the past so that procedures might be improved in future.  Lawyers need to contribute to a clearer resolution of the legal issues at hand being separated out from the political and media maelstrom which accompanies a commission of this sort.  We Catholics need to help and encourage the Church hierarchy to be on the front foot in the public square explaining our mission, past mistakes, and future commitments.

Following upon Cardinal Pell’s disastrous appearance before the royal commission, it is now accepted that the Church must provide dissatisfied survivors of abuse with a legal entity to sue.  Otherwise, the head of the Church organisation being sued (a diocese or a religious congregation) should provide survivors with a legally enforceable assurance that the church leader will discharge any judgment debt.  The Church organisation, conceding that a priest or religious is in a position akin to employment, should not challenge the assertion that a priest or religious is an employee for the purposes of any damages claim.  The Church organisation should comply with a model litigant protocol along the lines of those adopted by governments.  Having taken these steps, any church organisation is entitled to plead and fight its case consistent with the law.

The royal commission has been too focused on financial compensation for victims.  Doing so, it has set up unreal expectations for victims and their supporters and set impossible questions for some of the witnesses.  Under Australian law, the relevant causes of action are: negligence, vicarious liability and non-delegable strict liability.  The royal commission states in its interim report: 'Important issues – including limitation periods, the proper defendant, vicarious liability and the level of damages – will be considered.'   Under Australian law as most recently set down by the High Court in 2003, there are limits to the extent to which an organisation will be vicariously liable for the criminal wrong of one of its employees sexually abusing a child.  There are very few, if any, instances in which the law would find a non-delegable strict liability going beyond the limits of vicarious liability.  The commission is clearly anxious to expand the realm of vicarious liability, much in the way that the courts in the UK and Canada have done.  There is little point in asking witnesses about this, let alone asking church leaders. It is not a matter for the commission.  It is a matter for the High Court. 

Theoretically, one might postulate the commission recommending a very detailed statutory template for adoption by all state parliaments legislating when an employer would be vicariously liable for his employee’s criminal wrongs.  But this is no matter for legislation.  The prospect of getting buy-in from all state parliaments on a matter so complex is very remote.  The statute would need to cover Lindsay Fox’s truck driver stopping at an intersection and deciding to biff the slow driver in the Ford Focus, as well as the errant teacher who sexually assaulted a child in a classroom or in a dormitory.

In its line of questioning on vicarious liability, the Commission sometimes gives the impression that it is seeking to make liability co-extensive with the admitted wrongdoing or failing of an employer.  But the thing about vicarious liability is that it concerns liability where the employer is not in the least at fault, there being no proven negligence.  The courts determining the limits of vicarious liability are concerned to determine the justice of redistributing damage in light of what seems fair given the scope of the enterprise of the employer.  Ultimately, this will be a matter for the High Court, and not for Justice McClellan. 

There has been one other line of persistent questioning in the Commission which is unpersuasive, at least in part because there has been a failure to concede the unlikelihood that the commission will be able to achieve its desired result.  Church personnel are regularly grilled about their failure to report a paedophile to the police even though the victim now an adult could do so and has decided not to and has asked church personnel to desist from doing so.  This was a matter which came to prominence in last year’s Victorian parliamentary inquiry.  The Victorian Parliament responded by amending their Crimes Act.  The Victorian law provides that an adult must provide the police with any information about a criminal assault on a child unless the information came from the victim who was over 16 years of age when the information was conveyed and 'the victim requested that the information not be disclosed'.  The commission has found that on average a victim discloses abuse 22 years after it occurred. The federal commission will have a very uphill battle trying to convince the Victorian parliament to change this new law.  If it were a law passed in 1954 without the benefit of recent inquiries, that would be a different matter.  But this is a 2014 law passed after consideration of the vexed issue by a parliamentary committee.

In the next three and a half years with this royal commission, the Catholic Church needs to be more proactive, more on the front foot, more unashamedly committed to truth, justice, transparency and compassion, regardless of what the royal commission might recommend and regardless of the continuing barbs of those sections of the media which are anti-Catholic.  The Church must have the confidence that in the end the truth will out.  Moving forward in hope with a commitment to assist and protect vulnerable children, the church needs fearless legal advisers to keep reminding church leaders about the fine ideals of scripture and the Church tradition which should animate, inform and shape every public utterance before the commission, no matter how adverse to the church witness’s personal self-interest.