Published: 20 December 2019

Legislative Council Thursday 21 November 2019

Ms FORREST (Murchison) - Mr President, I commend the Government for continuing to act on the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.  It is an area that has received significant attention and rightly so.

I reiterate the Leader's comments in the second reading speech - the royal commission's recommendations recognise governments, institutions and the broader community share responsibility for keeping children safe.

The more I learn about and understand the very real ongoing and soul-destroying impacts of child sexual abuse, the more it is clear that not only prevention must be our clear goal, but also that past abuse and, of course, current and ongoing abuse may lie at the heart of many other social challenges individuals are facing.

Ongoing societal-wide acknowledgement of the horrific lived reality for many victims and their families and the need for lifelong support and care for many victims must be central to our actions and decisions in this place to - as much as we can - facilitate redress for past victims and prevention of future and ongoing abuse.

The Leader stated at the conclusion of her speech - and I also wish to acknowledge - the enormous courage of people affected by institutional child sexual abuse who shared their stories with the royal commission.  The bravery of those survivors and the families of victims and survivors cannot be quantified.  As the Leader said, we would have a much-limited awareness of the full impacts without those testimonies.

The full impacts of the harm caused to these children cannot be fully quantified; as the Leader mentioned, without the assistance and commitment to the truth of these very courageous individuals we would not be able to be standing here today and doing some of the things we are doing.

I - and, I am sure, many others - have been dismayed by the significant difficulties survivors have experienced trying to bring those responsible for their abuse to justice.  The reliving of the experiences.  The fear of not being believed.  The horrendous cover-ups that have gone on and on all add to this.

The Justice Legislation Amendment (Organisational Liability for Child Abuse) Bill 2019 seeks to improve civil litigation outcomes for survivors of child sexual abuse.  The Government's response to the royal commission's final report and earlier working with children checks, redress and civil litigation and criminal justice reports included the Government's commitment to implement recommendations to strengthen institutional liability for child sexual abuse.

Last year, the Government commenced participation in the National Redress Scheme for institutional child sexual abuse.  While I acknowledge this is an important and crucial step, I will not re-prosecute the fact that our scheme falls short of many other jurisdictions with regard to access to compensation.  It does provide a pathway for some survivors to achieve justice without the need to undertake the complexity of civil law proceedings, if they wish.  The National Redress Scheme applies only to past abuse.  It does not provide a framework for organisational liability for child abuse that may occur in future. 

The royal commission concluded that reforms to civil litigation are required in Australian jurisdictions to provide justice to survivors past, present and future.  These civil law reforms will ensure that all survivors of child abuse have a number of pathways to access justice.  Survivors of child sexual abuse address their abuse in different ways and at different times, sometimes many years following the abuse.  The decision to attempt to seek justice either in a criminal or civil proceeding is incredibly courageous and a personal decision that must be supported. 

The royal commission makes it clear that reform is needed to reduce the current barriers to individuals in seeking damages for child abuse through the civil litigation.  These barriers relate to the very nature and impact of institutional child sexual abuse and can work against the survivors' ability to seek damages through existing avenues.  This bill seeks to address some of those barriers.  The bill also makes amendments that complement the work of the royal commission, providing previous settlements, and this is also a welcome inclusion.  Some people accepted what was available at the time, which was anything but reflective of the harm they had suffered.

I note the bill mirrors many provisions very closely with the recent New South Wales legislation, particularly the amendments to the Civil Liability Act 2002, and imposes a statutory non‑delegable duty upon all organisations that exercise care, supervision and authority over children to prevent an individual associated with their organisation perpetrating child abuse.  The royal commission's findings identified that survivors of child sexual abuse have significant difficulty in bringing civil law actions against organisations, as a claimant must establish that the organisation owed them a duty of care and the breach of that duty caused their damage.  The royal commission recommendation 89 of the Redress and Civil Litigation Report recommended that -

State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.

I note this bill imposes a clear duty of care that survivors can point to as forming part of the cause of action in negligence.  That is, a fault-based duty and it is non-delegable.  The bill inserts provision in the Civil Liability Act 2002 to now include a specific definition of child abuse.  Child abuse includes all types of abuse, all sexual abuse or physical abuse and all psychological abuse that arises from the sexual or physical abuse.  This definition now makes it clear that the scope of an organisation's duty is to protect children but does not include an act that is lawful at the time when it occurred.  There was some comment about this during the consultation and I will come back to that. 

The duty itself requires an organisation to prevent an individual associated with an organisation perpetrating child abuse against a child for whom they are responsible.  This is a very important inclusion as we saw from so many reports of institutionalised sexual and other abuse of children, the repeated cover-ups by others in the organisation.  Now, an individual associated with an organisation includes, but is not limited to, an individual who is an office holder, officer, employee, owner, volunteer or contractor of the organisation and also includes, if the organisation is a religious organisation, a religious leader, such as a priest or minister, a member of the personnel of the organisation and any individual that is prescribed or who is within a class of organisation that is prescribed.

This will make the breadth of the responsibility really clear and that is so important.  These categories of individuals associated with an organisation draws on and reflects recommendation 92 of the royal commission's Redress and Civil Litigation Report.  Provisions in the bill provide that, under this non-delegable duty, an organisation that has a responsibility for a child must take reasonable precautions to prevent an individual associated with an organisation who, by virtue of being associated with that organisation has authority, power or control over a child or the trust of the child or the ability to achieve intimacy with the child from being able by virtue of that authority, power, control, trust or ability to perpetrate child abuse on the child.

Children are generally naturally trusting, especially when they see adults appearing to trust each other.  We know in the past and still now children are not always believed when they often reluctantly disclose inappropriate, threatening and/or abuse actions to another.  It is often later in life, sometimes when another incident in their life takes them back to that abuse, despite access to education and sex education that covers issues of personal safety and consent.  For some loving, supportive families who are genuinely unaware of the abuse, when that moment occurs we need to remind ourselves of the vulnerability of that person as a child and support and act to seek redress.

We do not know what event will take them back.  I have seen this happen for women in labour, when they are birthing their baby sometimes the sensations that occur during a birth take them back to the abuse and it is really, really hard.  When you have not been there to see that impact and if you lack awareness, you could completely miss what is going on and the really intense support a woman needs at that time.  I will not share any stories about some of those experiences, but I have had them with women I have cared for to the point of having full-on panic attacks.  Absolutely horrific reliving of those experiences at a really crucial time in their lives.

We do not know what has happened in people's lives.  We do not know what has happened in their background.  We do not know what the trigger might be that takes them back to one incident, those many incidents, but we should not judge people's behaviour at a certain point in time because we do not know what might be lying behind that.

I note the bill allows an organisation to rebut the duty by establishing the organisation took reasonable precautions to prevent the abuse, which was specifically recommended by the royal commission recommendation 91 of the Redress and Civil Litigation Report.  I will repeat the sections from the Leader's second reading speech on this matter.

The royal commission recommended -

Irrespective of whether state and territory parliaments legislate to impose a non delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse.  The 'reverse onus' should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed.

The Leader further stated the royal commission recommended a shift in the onus of proving reasonable precautions to organisations, to ensure organisations implement the current best practice to prevent and respond to allegations of child sexual abuse.  This is really a forward-focused approach to ensure there can be no excuses in the future.

It is vital for the future and one could ask why it has not always been the approach adopted in the past.  It really should not have taken so long and so much pain and misery of children - many now adults - to realise this was the right approach to take.  I agree it is right for a court to be able to determine whether an organisation took reasonable precautions to prevent child abuse taking into account the nature of the organisation; the resources reasonably available to the organisation; the relationship between the organisation and the child; whether the organisation has delegated in whole or in part for the exercise of care, supervision or authority in respect of a child to another organisation; the role of the organisation or the individual who perpetrated the child abuse; the level of control the organisation had in respect to the individual who perpetrated the child abuse; whether the organisation complied with any applicable standards, however described in respect to child safety and any other matter prescribed by the regulations and any other matter the court considers relevant.

It is important to give the court the opportunity to consider all matters that may be relevant.  It is important to have in there the size and resources available to the organisation.  Some of these really small organisations involved with the care of children do not have the same level of resources as the churches and the money the churches do, conveniently tied up in a little trust.  Anyway, I will not go down that path.  Some of this information has been a challenge trying to understand why this should not be retrospectively applied, which I will come to in a moment.

A reversal of the onus of proof means an organisation must demonstrate that its policies and procedures ensure it is a child-safe organisation.  One hopes this will lead to real change and reform in the way many organisations have operated in the past and will hopefully lead to much-needed cultural change.

We talk about what culture is.  Culture is the way we do things around here.  When you have a culture that has allowed and perpetrated child sexual abuse, has covered it up and moved the perpetrator to somewhere else to start all over again - that is culture.  It takes a while to change that culture, but it has to change.

As the Leader suggested, the insurers of these organisations will be, no doubt, doing their own risk assessments before agreeing to provide insurance.  As the royal commission noted on page 494 of the Redress and Civil Litigation Report -

Reversing the onus of proof has the potential to encourage higher standards of governance and risk mitigation in institutions, both through their own efforts and through their compliance with the requirements of their insurers.

and suggesting that -

The significant financial consequences that may flow if the standard is not met create powerful incentives for institutions and their insurers to take steps to ensure that abuse is prevented.

I know the work that organisations like the Australian Institute of Company Directors do when they talk about good governance models and risk management.  When you are in an organisation that has responsibility for the care of children, this is one of the very real risks, and insurers rightly will be looking very closely at what an organisation is doing before they consider insuring them.

I more than hope - I expect - this will raise the standard and make sure organisations put in place proper mechanisms to ensure the safety of children.  Having documents in a folder sitting on a shelf, notionally read as each staff member appears and not being adopted or followed through, is completely useless.  It has to be the lived, cultural way we do things around here.

Insurance companies might look for the document - I do not know how they check the culture of the organisation but that is a matter for them.  The document is only the first step.  I assume insurance is required before such an organisation can operate - this is a question the Leader may like to address - and work with children and other vulnerable people.

Is it a requirement these organisations have insurance before they can operate?

I note the reasons for the prospective nature of this section.  The Leader stated she recognises the great difficulty organisations would face in attempting to prove reasonable steps were taken if the duty was to have retrospective application.

I will reiterate what was said by the Leader in her second reading speech.  She said -

 It would be extremely difficult for an organisation to defend their practices in relation to historical claims where the need to retain records or implement policies to prevent abuse was not anticipated. 

On this point, the royal commission noted, on page 492 of the Redress in Civil Litigation Report, that -

If the liability was left to the development of the common law and applied retrospectively, in combination with the removal of limitation periods we recommend in Chapter 14, relevant institutions would face potentially large and effectively new liability for abuse that has already occurred, potentially over many previous decades.  Even if it were possible to obtain insurance in respect of retrospective liability on such a scale, the insurance would be likely to be unaffordable for many institutions.  No institution could now improve its practices or take steps to prevent abuse that has already occurred.

I have read some of the submissions into the draft bill.  They are all on the Justice website, which is really helpful to enable us to prepare for these debates, and I also considered other, similar jurisdictions' legislation, including that of New South Wales.

The Australian Lawyers Alliance raised concerns regarding the vicarious liability provisions and prospective nature of some provisions of this bill.  In the submission from the Australian Lawyers Alliance, concerns were raised regarding the vicarious liability provision initially proposed for Tasmania being expressly prospective, arguing that without a saving provision it could be argued that it would take away many existing retrospective common law vicarious liability rights.  They stated in their submission that  -

…the best remedy - in addition to preserving the common law - is to make the

provisions relating to vicarious liability expressly retrospective.  This would accord with the undertaking given by the Archbishops of Melbourne and Sydney as announced by the Hon. Justice Peter McClellan AM on 15 July 2015 that it is the: 

'… agreed position of every bishop and every leader of a religious congregation in Australia that we will not be seeking to protect our assets by avoiding responsibility in these matters ….'

and that: 

'… anyone suing should be told who is the appropriate person to sue and ensure that they are indemnified or insured so that people will get their damages and get their settlements.'

17. Clearly, the Catholic Church intended by this statement to accept vicarious liability retrospectively in respect of clergy and volunteers.  The Tasmanian Parliament should do no less.  At the very least, it should not take away existing common law remedies under the Prince Alfred College decision and in accordance with Scott v Davis.

I note an amendment was made to section 49J(2) in the bill before us to deal with preservation of the common law but the question of retrospectivity remains.  The second reading speech informs us that vicarious liability reforms in other Australian jurisdictions have sought to codify the High Court's approach in the case of the Prince Alfred College decision. 

This approach analyses the apparent performance of an employee in a role in which the organisation placed the employee supplying the occasion for the perpetration of child sex abuse by the employee. The employee must then take advantage of that occasion to perpetrate the child abuse on the child.  The new test enshrined in the bill makes it clear that an organisation will be vicariously liable for an individual who perpetrates child abuse if their offending is facilitated by their employment with the organisation. 

It should be noted that the new statutory duty and vicarious liability are distinct courses of action.  The statutory duty is the basis of a claim of negligence and is fault-based, allowing an organisation to discharge presumption based on the reasonable precautions test and applies to a broad range of individuals associated with the organisation.  A test of vicarious liability is confined to employment or 'akin to employment' relationships and is a strict liability - liability despite fault or criminal intent on behalf of the organisation.  It allows a court to conduct a qualitative assessment of the case before them by examining the employee's role within an organisation and whether that role facilitated their offending.  It cannot be definitively stated whether certain categories of employees will be captured under vicarious liability.  Instead, the assessment will appropriately be determined by the court on a case-by-case basis.

I ask the Leader to provide further explanation as to the decision to apply proposed new sections 49H and 49J prospectively, particularly in light of her earlier comment that the Government aims to improve civil litigation outcomes for survivors of child sexual abuse and implement royal commission recommendations to strengthen institutional liability for such abuse.  I note that survivors have access to the redress scheme but it seems two major revisions of this important reform do not apply to past abuse.  I raised this at the briefing; I have some understanding of the rationale behind it, but it is important to put clearly on the record why it does not apply retrospectively.

The bill also amends the Civil Liability Act 2002 to enable child abuse proceedings to be brought against unincorporated organisations, such as church groups, that were previously unable to be sued due to a lack of a legal personality.  I understand this is commonly known as the Ellis defence.  The Leader indicated that this bill will abolish this defence in Tasmania and I asked the Leader to provide further comment on this aspect of the bill.

I had some discussions with Mr Andrew Morrison QC, both by email and on the phone.  He is the Australian Lawyers Alliance spokesperson on institutional child abuse. He presented to the royal commission on behalf of the Australian Lawyers Alliance, and he is very passionate about this area and an expert in the field.

This organisation contacted me and I got back to them.  I note their submission again, which I referred to earlier, and it stated on this point - 

The third element of the Ellis defence was the proposition that because priests are not strictly employees, there can be no vicarious liability.  It is worth noting that in the NSW Parliament, the Attorney General (AG) undertook to remove the Ellis defence and said in his Second Reading Speech:

'… it means that no matter when the abuse occurred survivors will now be able to sue a proper defendant with sufficient assets to satisfy a claim.' 

… Unfortunately, and while the changes in relation to whom to sue and the availability of assets were made retrospective, the provision for vicarious liability in respect of those in employment-like positions (priests and volunteers) is only prospective.  Accordingly, the NSW legislation does not match the expressed intentions of the NSW AG.  The Tasmanian Parliament should not make the same mistake.

In reference to the Ellis defence, I note that in 2007, the New South Wales Court of Appeal found that the Church did not legally exist because its assets were in a legally protected trust.

As the Leader stated, these findings prevented Mr Ellis from seeking justice and preventing him from seeking compensation, even though the Church did not dispute that Mr Ellis had been the victim of terrible abuse and had suffered prolonged damage, and legal action could not proceed because there was no proper defendant to the proceedings. 

You can only imagine the pain that would be ongoing as a result of that.  Not only did he suffer the abuse, but then he had to go through reliving all that only to be told there was no proper defendant.  How many times can this poor man be traumatised?

In response to this legal barrier, the royal commission made recommendation 94 in the Redress and Civil Litigation Report, stating that -

State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from proceedings:

          a.     the property trust is a proper defendant to the litigation

          b.     any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.

This bill provides a process such that once a proper defendant has been appointed, either by the court or the unincorporated organisation, a proper defendant acts on behalf of the unincorporated organisation and is responsible for conducting the proceedings as a defendant.

The provisions to amend the Limitation Act 1974 to allow the courts to set aside a previous settlement between an organisation and the survivor, if it is in the interests of justice to do so, thus enabling a survivor to commence civil litigation against the organisation, is a welcome and important inclusion.

I note, as the Leader said, this did not flow from the royal commission, but rather complements work the Government is undertaking in response to other recommendations, particularly to limitations reform.  I sincerely commend the Government for including this change in the bill.

I could not watch, listen to or read much of the evidence received by the royal commission.  I again commend and thank those engaged in such a gruelling and important task.  We know from the reports, and the reports through other avenues, that survivors of child sexual abuse are unlikely to report their abuse for a significantly longer period than other victims.

In 2018, this Government removed the limitation periods in relation to actions for child abuse in recognition of these findings.  So many children, years ago, did raise concerns but they said they were not believed, and it was never followed up.  Once you have been told once before as a child you are not right or it is not true, it is very difficult to continue to raise it.

As the Leader stated, one of the impacts of the limitation periods is that survivors of child sexual abuse were generally prevented from pursuing civil law claims for their abuse. 

Given the operation of limitation periods, the settlement payments offered to survivors of child sexual abuse were low and, in many ways, provided little tangible support for the victims.

This does give those victims a chance to have some more meaningful compensation and redress but nothing, no amount of amount of money, will ever make up for the harm these people have suffered.

While this amendment seeks to remove these barriers for survivors by allowing them to command some civil litigation in pursuit of a settlement, we need to remember the harm can never be removed from these individuals.

The Leader said in her comments that in the amendment to the Limitation Act 1974, the definition of child abuse differs slightly to the same definition used in relation to the organisational liability introduced under the Civil Liability Act 2002.  Here child abuse means sexual abuse or serious sexual abuse of a child or any psychological abuse to the child that arises from sexual abuse or serious physical abuse of a child, but does not include an act that is lawful at the time when it occurs.

This was something that was also raised by a number of people in their submissions to the draft bill.  When you first read it, you think child abuse is child abuse and it should not be that serious, but I do understand that 20, 30, 40, 50 years ago, when this abuse was going on, community standards were a little different.  I still believe they were wrong, but it is difficult to hold people who lived those years ago to today's standard.

This definition is consistent with the existing reforms to the Limitation Act 1974 and ensures organisations are not liable for actions considered appropriate discipline at the time they occurred.

You look back and children were disciplined back then in some horrific ways.  I do not know where you draw the line.  It really is difficult for me to hear about beating a child repeatedly with something like a belt with a buckle on it or all sorts of things, and the physical harm that does to a child's body must surely be serious.  It is serious, but at the time was it deemed reasonable?  Anyway, that is a matter for the court and they will make those determinations.

To be clear, it is intended to operate as a threshold for previous settlements for physical child abuse.  They are only set aside where the physical abuse was serious physical discipline beyond the community standards at the time.  The challenge in my view is:  how do you define the community standards at the time?

I know this definition was raised with some concern by the Tasmania Law Reform Institute in its submission -

Second, the definition of 'child abuse' uses terms that are ambiguous and inadequately defined.  The definition is:

child abuse, in relation to a child, means -

(a)     sexual abuse, or serious physical abuse, of the child; and

(b)     any psychological abuse of the child that arises from the sexual abuse or serious physical abuse -

but does not include an act that is lawful at the time at which it occurs.

Neither 'sexual abuse' nor 'serious physical abuse' are defined.  These terms are vague, uncertain and consequently open to inconsistent interpretation.  To begin with the word 'abuse' maybe interpreted by some as importing notions of continuous conduct, a course of conduct or systematic conduct.  Because this is not the Bill's legislative intent, it would be wise to provide further definition or interpretive guidance of what is meant by sexual and physical abuse.  With regard to 'sexual abuse' it is suggested that the definition in the Victorian Wrongs Act 1958 be adopted;

'"sexual abuse" means sexual abuse or other sexual misconduct'.

Where physical abuse is concerned, redress and liability should not be limited to cases of 'serious' sexual abuse. This limitation is out of step with the approach taken in New South Wales and Victoria (see ss 6F (5) and 6H (4) of the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) and s 88 of the Wrongs Amendment (Organisational Child Abuse Liability) Act 2017 (Vic).  In this regard, Tasmanian law should maintain consistency with that in NSW and Victoria. Further, and most importantly, Tasmanian law should not condone any form of physical abuse of children. Additionally, the term 'serious physical abuse' is vague and thus open to inconsistent interpretations. It is indeterminate and open to highly subjective interpretations. What is serious physical abuse to one person may seem trivial to another. No guidance with respect to the meaning of this term is provided in the Bill, for example, whether seriousness attaches to the degree of force used, the nature of any injuries caused, or both.

For all these reasons and particularly because no form of physical abuse of children is justifiable, the word 'serious' should be removed from the definition of child abuse wherever occurring. Instead it is suggested that the approach in NSW and Victoria be adopted and 'child abuse' be defined as 'sexual abuse or physical abuse perpetrated against a child'.

It may be that redress and liability for physical abuse have been limited in the Bill to 'serious' physical abuse in an attempt to exclude liability for reasonable physical correction of children (see s 50 Criminal Code 1924 (Tas)) or other lawful applications of force, such as that used in effecting a lawful arrest. Such applications of physical force are covered by the exclusion contained in the proviso in ss 49H(5), 49J(3) and 49L that child abuse 'does not include an act that is lawful at the time at which it occurs'. This proviso obviates the need to limit child abuse to 'serious' physical abuse. Nevertheless, this exclusion is vague and unnecessarily broad. It applies to both sexual and physical abuse. A clearer, narrower and, accordingly, preferable limitation is provided in s 88 of the Wrongs Amendment (Organisational Child Abuse Liability) Act 2017 (Vic), which limits the exclusion to physical abuse. This section provides that 'physical abuse':

          'does not include an act or omission committed in circumstances that constitute - 

          (a)       a lawful justification or excuse to the tort of battery; or

          (b)       any other lawful exercise of force'. 

It is recommended that the definition of 'child abuse' in the Tasmanian Bill be revised to conform more closely to the Victorian and NSW approaches. Such a definition might be: 

          child abuse means sexual abuse or physical abuse perpetrated against a child but 'physical abuse' does not include an act or omission committed in circumstances that constitute - 

          (a)       a lawful justification or excuse to the tort of battery; or

          (b)       any other lawful exercise of force.

This definition limits the exclusionary proviso to 'physical abuse'. Currently, the general exception in the Tasmanian Bill applies to both physical and sexual abuse. In this regard it excludes liability for sexual acts that were 'lawful at the time' at which they occurred.

On that point, I do not think sexual assault, the Leader might like to clarify this, has ever been lawful against a child but, again, it comes down to what the definition of sexual assault is.  Going back to the TLRI submission -

The meaning of lawfulness 'at the time of the conduct' in this context is likely to be highly contestable. Of most concern is that it may be arguable in historic cases of child sexual abuse and, where found to be applicable, defeat the Bill's exclusion of limitation periods for such conduct. The lack of certainty in the operation of the exclusion where child sexual abuse is concerned supports the revision of the definition of 'child abuse' in the terms suggested.

That was a long quote, Mr President, but it was all relevant to the definitions in this bill.  I would like the Leader to provide much further clarity and explanation as to why the drafting was not changed to reflect what I see as legitimate and real concerns regarding the definition of child abuse in the section.  I raised it at the briefing, so I am sure her advisers will be able to provide her with some further information on this.

I acknowledge the comments made regarding the proposed approach of setting aside a previous settlement if it is in the interests of justice to do so.  It does provide flexibility to the courts, with a non-exhaustive list of matters to which a court may have regard in determining whether it is in the interests of justice to set aside an agreement affecting a settlement in respect of a relevant right of action.  It is important to facilitate the court's role in determining other factors to be relevant in this specific case.

I worked for a number of years with a constituent of mine who was a victim of the most horrific abuse.  The church was involved but many others were involved as well.  It was not only her, it was her siblings, and some of them were not her blood siblings, but I worked with her for a long time.  The first time she had ever told her story and was believed was when she told it to me.  We do not know exactly how old she is because she has no record of her birth, no birth certificate.

She put in a submission to the Senate inquiry.  I wrote it for her because she is illiterate.  I listened to her story; we wrote it all down, and I said to her before I put it in -

This is the first time you are telling your story.  Your children don't even know about this.  Your husband doesn't know about this.  We can put it in as completely confidential, we can put it in as a confidential submission from me or we can put it in as an open submission from you.

I sent her away to think about it because the abuse described in this was horrendous.  The impact on her life has been horrendous and some of the things that happened to her were not believed by those who were caring for her. 

I had some members of a particular church order meet her in my office after they had told me that a certain thing had never happened to her.  I said, 'Well, I have a piece of paper here that tells me quite clearly it did.  I can send you a copy if you want'.  I read out this document that I had that clearly indicated that what she told me was true.  It took me months and months to find this document.  When we did it was like finding gold because it validated some of the terrible things that had happened to her.  This member of the church order met with her in my office.  She had been refused access to our state redress scheme - children abused in state care - because she did not have a birth certificate.  She was not eligible. 

We fought and we fought and we got her some compensation, but that scheme did not provide for very large payouts.  Someone like her now has ongoing health problems, significant health problems, costs she cannot afford.  Her husband is no longer with her.  He passed away.  Her daughter died young.  These sorts of things will hopefully open another avenue for her, even though she has had a payout.  She only received a payout from the state, she did not receive a payout from the other religious organisation.

Mr President, until you have sat with someone and listened to them through this - and it took several meetings for her to go through all of it - you cannot understand the horror.  I do not understand the horror.  You cannot try to appreciate the horror some people in our communities have lived with.  I cannot understand it.  I have never been exposed to anything like that, but there are people out in our communities who are living through this, and we do not know.  They might not have told anybody but, if they do, that person needs to believe them.  When they come forward, that person needs to be believed. 

I wanted to raise that as one of many but a very clear example.  We still have not been able to find out who she is, really, where she came from, where she was born or the date she was born.  We have indications of her age.  She has a certificate to say she has no birth certificate.  I managed to get that for her.  Imagine what that must be like.  I do not think anyone can really imagine it.

I commend the Government for the timely and proactive action to address recommendations of the royal commission and hope the enactment of this bill provides more accessible access to justice to survivors of horrendous abuse.  I also acknowledge the work that the departmental officers have done in this, particularly Amber Mignot.  I think she has put her heart and soul into this, but listening to the testimonies of the royal commission, reading through all those reports must be harrowing too.  I acknowledge the work she has done on this. 

I support the bill.  I am glad to see it here and I would appreciate further comments regarding those few areas I have raised as genuine concerns during my contribution.


Go Back