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The contours of an extended child abuse royal commission

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Frank Brennan |  02 July 2014

Child abuse royal commission in session

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.


Frank BrennanFrank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.

 



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When someone says to me "I have some good news and some bad news" I immediately tense up and don't want to hear any news. But the Child Abuse Royal Commission is way too important to take that approach. I am heartened that victims' groups are taking a considered view about a lengthier hearing. Three things are clear to me: 1. People have been hurt. 2. Badly. 3. By the Catholic Church. No amount of cool discussion about the amount and mode of damages will wipe those facts out. I would hope for a passionate, big-hearted response from a lumbering giant of a church towards those it has crushed.

Pam 02 July 2014

#Perhaps one configuration of Royal Commission[RC] passed over has been the critical issue of psychiatric advice. Such given to hierarchies here and o/s re recycling pedophiles with clean bills of health [Such now considered incurable; unlike the past[the latter still not factored in at RC among causalities] #And now a mammoth loop hole rises within the up-to-the-minute psychiatric bible DSM 5. #There has been an interesting [disastrous?] DSM furtherance. #In DSMs up to DSM 5, paraphilia had accurately a subset viz pedophilia and still does. #"However, note the seismic shift.The name has been changed from Paraphilia to Paraphilic Disorder to underscore that while having a paraphilia is necessary for the diagnosis of paraphilic disorder. It is not enough to warrant the diagnosis of a mental disorder. The paraphilia[including pedophilia] must also cause distress or impairment to the individual, or the fulfilment of the paraphilia must involve personal harm, or risk of harm, to others in order to meet the criteria of a paraphilic disorder (APA, 2013a)." Reichenberg, Lourie W. (2013-11-18). DSM-5 Essentials: The Savvy Clinician's Guide to the Changes in Criteria (Kindle Locations 2276-2279). Wiley. Kindle Edition. #[So FRJG notes if pedo isn't distressed AND note the chiasmic 'OR's ]VERSUS 'ands'], then pedophilia is not on the patho radar of mental disorder or disease]

Father John George 02 July 2014

I don't understand Frank's problem with vicarious liability. The situation of a truck driver biffing another is quite different to a child being abused in an institution. The Qld government introduced the first workers compensation legislation in 1886 that eventually led to strict liability for workplace injuries, and that led to better conditions for workers. I don't see why the same strict liability cannot be imposed on institutions for any kind of abuse of children. And since money does talk the threat of higher insurance premiums is likely to have the same effect, when coupled with other sanctions. I also don't understand his point about the Victorian legislation. It is virtually the same as the recent Irish legislation and brings Victoria into line with NSW law. It has the advantage of specifying what are or are not reasonable excuses. From what I have been able to observe of the questioning of the Commission, I would have thought that it was moving towards a recommendation that all States adopt that kind of legislation.

Kieran Tapsell 03 July 2014

Sorry Pam, but any significant extension of the royal commission will be both good news and bad news: good news for those additional victims who get to tell their stories in a safe place, bad news for those victims and members of institutions waiting for a gold standard system for hearing complaints, addressing compensation and reducing the risk of future abuse. Kieran says, "I don't understand Frank's problem with vicarious liability". He thinks reforming the law of vicarious liability is quite simple. The High Court of Australia's 2003 decision on the issue runs to 117 pages in the Commonwealth Law Reports. That ain't simple.

Frank Brennan SJ 03 July 2014

.." the church need fearless legal advisors to keep reminding church leaders about the fine ideals of scripture and the Church tradition..." What of the Churchs' long tradition of Canon Law? Hopefully canonists will be counted as important, to also be fearless legal advisors to remind Church leaders. And, where were our fearless canonists for the Church to have got into such a mess over many decades? Therese

Therese 04 July 2014

"committed to truth, justice, transparency and compassion," The problem you have Frank is that being an apologist for the institution means that your petty legal arguments about vicarious liability mask the greater truth that nthe Church needs to make amends for the suffering of survivors this includes just fair settlements, something that has not been seen by hastily cobbled together "Towards Healing" schemes. We can have a lawyers picnic and arguments about quantum till the cows come home but linking the Commission and the issues it is exploring with an anti catholic media is a rather long bow. Perhaps you should start arguing for the survivors needs rather than defending the indefensible. Much more is to come and I would hope that the Church finally begins to actually understand the issue and make reparation. Again I wonder whether you are getting caught up in fine legal arguments to do as David Marr stated in regard to Cardinal Pell " protecting the patrimony of the Church". I hope that your next article looks closer at the historical needs of Survivors

Richie 04 July 2014

A media take on DSM pedophilia issue above: http://www.huffingtonpost.com/2013/11/01/dsm-pedophilia-mental-disorder-paraphilia_n_4184878.html

Father John George 04 July 2014

If the Catholic Church is to be more proactive, a suggested first step in this direction would be to have the Truth,Justice and Healing Council under the leadership of Francis Sullivan examine the provisions of Canon Law and its many attachments to determine whether 'Pontifical Secrets' and 'Secrets of the Holy Office' have been a factor in cover-up. It would very disappointing if after all these government inquiries, a residue of poorly conceived law remained to enable cover- up to resurface some time in the future.

John Casey 05 July 2014

Father John George, I would imagine psychiatry would only be relevant if a potential child abuser suffered from some type of psychosis, is, split with reality and were under some type of court order to take ant-psychotic medication to protect the public from their otherwise uncontrollable symptoms - people who would at one time be locked up in mental hospitals. I know someone who suffers from a paraphilia of being attracted to inanimate objects. ARe you suggesting that church teaching coincides 100% with psychiatry, psychology?

AURELIUS 05 July 2014

Frank, I'm not talking about reforming vicarious liability. I'm talking about the imposition of strict liability for abuse in institutions, the same as we have for workplace injuries. There will be issues relating to marginal cases as with workers compensation, but that is why we have courts. But you seem to be saying that it is all too hard because the law of vicarious liability has to be reformed. It doesn't

Kieran Tapsell 05 July 2014

Kieran, I find the 2003 observations of Chief Justice Gleeson worthy of consideration. He wrote: In cases where the care of children, or other vulnerable people, is involved, it is difficult to see what kind of relationship would not give rise to a non-delegable duty of care. It is clearly not limited to the relationship between school authority and pupil. A day-care centre for children whose parents work outside the home would be another obvious example. The members or directors of the club, which provided recreational facilities for children, considered by the Supreme Court of Canada in Jacobi v Griffiths[33], presumably owed a non-delegable duty of care to the children who were sexually assaulted by the club's employee. It would be wrong to assume that the persons or entities potentially subject to this form of tortious liability have "deep pockets", or could obtain, at reasonable rates, insurance cover to indemnify them in respect of the consequences of criminal acts of their employees or independent contractors. Whether the organization providing care is public or private, commercial or charitable, large or small, religious or secular, well-funded or mendicant, its potential no-fault tortious liability will be extensive. Furthermore, if deterrence of criminal behaviour is regarded as a reason for imposing tortious liability upon innocent parties, three things need to be remembered. First, the problem only arises where there has been no fault, and therefore no failure to exercise reasonable care to prevent foreseeable criminal behaviour on the part of the employee. Secondly, it is primarily the function of the criminal law, and the criminal justice system, to deal with matters of crime and punishment. (Most Australian jurisdictions also have statutory schemes for compensating victims of crime.) Thirdly, by hypothesis, the sanctions provided by the criminal law have failed to deter the employee who has committed the crime. There is a further difficulty with the proposition under consideration. If a pupil is injured by the criminal act of another pupil, or of a stranger, then the possible liability of the school authority is determined by asking whether some act or omission of the school authority, or of some person for whose conduct it is vicariously responsible, was a cause of the harm suffered by the pupil. Why is a different question asked when the injury results from the criminal act of a teacher? There is no reason, either in principle or in authority, to treat the existence of a non-delegable duty of care as having the consequences held by the New South Wales Court of Appeal. In that respect, the reasoning of Heydon JA, and of the Queensland Court of Appeal, is to be preferred. The orthodox method of analysing the problem is that adopted by the House of Lords and the Supreme Court of Canada. On the assumption that there has been no fault on the part of the school authority, the question to be addressed is whether the authority is vicariously liable for the wrongdoing of its employee.

Frank brennan Sj 06 July 2014

Frank, if you substituted "strict liability for workplace injuries" for "non delegable duties for injuries to children" in the citation from Gleeson CJ, you could find a very good argument for why Workers Compensation legislation should never have been introduced. It has not stopped workplace injuries either, but one only has to be an employer (as I was for decades) to know that its very existence does influence behaviour. Businesses adjusted to it, and insurance companies came into the picture because there was a need. Children in the care of institutions are just as recognisable as are employees - and as with employees, there will always be arguments at the margins. I am not talking about reforming the law of vicarious liability. I am talking about a strict liability imposed by statute for a particular group of vulnerable people, and so taking it right out of the common law system of vicarious liability or non delegable duties to avoid the very problems that you talk about. That was one of the reasons for introducing Workers Compensation such a long time ago. They too were vulnerable people in the industrial conditions of the time.

Kieran Tapsell 07 July 2014

Justice McClellan responded to a number of these issues in his speech on Saturday. He said: "The obligation which is contained in the Letters Patent to consider justice for victims requires us to look at the “rules” of civil liability as well as any redress scheme. We cannot avoid the issues. The two must be considered together. I know there is a view that rules of civil liability should be left to the High Court. I do not understand the intellectual foundation for that view. Having regard to the High Court’s previous approach to issues of vicarious liability and the difficulties presented by the “Ellis defence” and statutes of limitation, the High Court would almost certainly say this is not an issue for it but for the Parliament. As Brennan J said in Dietrich v The Queen “changes in the common law are not made whenever a judge thinks a change desirable.” (Dietrich v The Queen (1992) 177 CLR 292 at 320). On issues of such general importance and complexity Parliaments look for guidance from Law Reform Commissions or other properly constituted inquiries. These issues were discussed by Mason J in State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633. In our case the Royal Commission has been asked to assist by making recommendations to government. We cannot avoid this task. But it is complex and requires consultation with many groups and individuals. Although that process has begun it requires time if our recommendations are to have any prospect of being accepted."

Frank brennan Sj 07 July 2014

I agree entirely with what McLellan said. The solution can only come from parliament, not the courts for the very reasons he mentions, and the difficulties you wrote about. The rules of vicarious liability apply across the board and may result in injustices in some other area of human activity if they are changed. I have mentioned a form of statutory strict liability as one solution to the problem, but there may be more suitable variants. The issue of damages is something else and we have enough experience of the lump sum solutions as against the continual liability ones to understand the disadvantages of both. I'm not saying the solution is simple, but it is made much more difficult if it is left to the courts, and your article seemed to be based on the idea that they had to come up with the solution.

Kieran Tapsell 07 July 2014

That's a valid point Kieran and I'm glad you've brought it up. I've seen that Vicarious Liability Tort on actual barristers Advices, but never discussed openly outside of arena of lawyers and I'm surprised Frank Brennan hasn't caught on to it before.

Lynne Newington 07 July 2014

Kieran, a useful discussion. We are ad idem on three matters. 1. The only way the law of vicarious liability will change is through the courts. That's the way it happened in the UK and Canada. 2. Too great a change to the law of vicarious liability could occasion injustice in other cases unrelated to children. 3. State parliaments could consider a statutory strict non-delegable duty of care owed to children by all persons (including parents) and all institutions. In my view, the chances are buckleys and none. So where do things go from here? My own hunch is that a statutory national redress scheme is the way to go - an administrative arrangement with caps etc, while leaving civil litigation in the courts an option enhanced with revision of statute of limitations, guaranteed defendant to sue, acknowledgement of employer-employee relationship and model litigant approach. Ultimately the High Court will be asked to revisit its 2003 decisions on vicarious liability and strict non-delegable duty.

Frank brennan Sj 08 July 2014

Frank, the one thing we seem to be in disagreement about is the possibility of the States cooperating to create a uniform strict liability, but they have all imposed it by statute for workplaces injuries. And the solutions that you are talking about also will require the cooperation of the States. The best way to deliver compensation is a matter already before the Commission, and I express no opinion on that. I also agree with you about the High Court having to reconsider matters relating to duties towards children (whether vicarious or non delegable) because I think the solemn pronouncements that there is no strict liability in practice are farcical. You only have to look at Introvigne, where supervising teachers were absent from the yard for 5 minutes to hear a message that the headmaster had died the night before. The New South Wales Court of Appeal reduced that 5 minutes to a few seconds in Watt when a teacher was distracted by another student while assisting students over a vaulting horse. Strict liability in practice is with us for accidental injuries to children. It is not such a huge step to impose it by statute for physical or sexual abuse.

Kieran Tapsell 09 July 2014

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