Member for Isaacs

Royal Commission into Institutional Responses to Child Sexual Abuse - Mark Dreyfus QC MP

27 May 2018

Australian Parliament House.

Mr DREYFUS (IsaacsDeputy Manager of Opposition Business) (12:49): In speaking about justice, Martin Luther King once said with characteristic eloquence:

Human progress is neither automatic nor inevitable. Every step towards the goal of justice requires sacrifice, suffering and struggle, the tireless exertions and passionate concern of dedicated individuals.

The work of the Royal Commission into Institutional Responses to Child Sexual Abuse provides a potent example of the tireless exertions and passionate concern in the pursuit of justice that Mr King described. That royal commission was announced by Prime Minister Julia Gillard in November 2012 and was established in January 2013. I'm proud of many of the things the Gillard government achieved, but I feel that the royal commission will be shown to be one of the government's more important initiativesan initiative that, in addressing the most appalling of injustices, will have a lasting benefit for the Australian community. The royal commission we announced was led by six royal commissionersthe Honourable Justice Peter McClellan AM, Mr Bob Atkinson AO, APM, Justice Jennifer Coate, Mr Robert Fitzgerald AM, Professor Helen Milroy and Mr Andrew Murray. Mr King's reference to the 'tireless exertions and passionate concern of dedicated individuals' could have been written for those six commissioners whose work over the five years of the royal commission was truly Herculean. Through their efforts, some of which will be brought into effect by these bills now before the House, a measure of justice will be delivered to tens of thousands of people who have suffered the most grievous injustice.

During the five-year course of the royal commission, it handled over 42,000 calls, almost 26,000 letters and emails, and held just over 8,000 private sessions with survivors of child sexual abuse. The final report of the commission comprising 17 volumes was delivered to the Governor-General on 15 December last year. The Turnbull government has said that it will respond to that report next month.

We in Labor, the survivors and their families, along with the wider Australian community, look forward to seeing that response because how we as a nation respond to the recommendations of the royal commission is of critical importance. Because while the royal commission has concluded its investigations, finished its hearings and delivered its final report, the work of delivering justice to the survivors of child sexual abuse is very far from completed. And so too the work of ensuring that our children are protected from the horror of sexual abuse in institutions, such as churches and schools, is in no way completed by the delivery of the commission's final report; rather, the protection of children from sexual abuse in the future will depend on the extent to which the Commonwealth, state and territory governments are willing to invest the effort and resources required to fulfil the 409 recommendations the royal commission has made.

Sadly, we have seen the recommendations of other royal commissions developed through years of tireless work and the most extensive consultations languish without proper implementation. It is my very sincere hope that such a lack of commitment does not compromise the tremendous work done by the Royal Commission into Institutional Responses to Child Sexual Abuse and that its recommendations are fully implemented, which brings me to the subject matter of these two bills, the national redress scheme.

Paragraph (d) of the letters patent establishing the royal commission called on the commission to answer the following question:

(d) what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.

In September 2015 the royal commission released its final report on redress and civil litigation. This redress report contained the commission's concluded view on the question of redress. The commission issued that report more than two years ahead of its final report because it said:

By reporting as early as possible on these issues, we are seeking to give survivors and institutions more certainty on these issues and enable governments and institutions to implement our recommendations to improve civil justice for survivors as soon as possible.

In keeping with this sense of urgency, one of the recommendations in the redress report was that:

The Australian Government should determine and announce by the end of 2015 that it is willing to establish a single national redress scheme.

And that the national scheme be:

ready to begin inviting and accepting applications from survivors by no later than 1 July 2017.

It's deeply regrettable that the previous Attorney-General, the former Senator Brandis, showed absolutely no interest in doing the work required to establish a national redress scheme, as evidenced by the fact that he did next to nothing to comply with the royal commission's recommendations and deadlines while survivors of child sexual abuse waited patiently for justice to at last be done. However, with responsibility for redress taken from Senator Brandis and given to other ministers in the government, negotiations began with the states and territories, and survivors finally began to see some forward motion.

Now this legislation is before the House that will at last implement a national redress scheme. That scheme will be operational a full year after the deadline that the royal commission set, but nevertheless it is a step forward in delivering justice to survivors. For this reason, and subject to some serious concerns I will set out now, Labor will be supporting the bills in this House. However, we will be carefully considering the recommendations of the Senate committee's inquiries into the scheme when it reports on 15 June, and we will be reserving our position in the other place until that occurs. In the meantime, we will continue to negotiate on a number of outstanding issues of concern with the government in good faith.

With that said, I will now briefly address some of our outstanding concerns about the redress scheme set out in this legislation. The very first recommendation in the redress report is titled 'Justice for victims'. It is important that we do not lose sight of this fundamental point: the redress scheme is at its core about delivering justice to survivors of the most hideous crimes against them. That first recommendation states:

A process for redress must provide equal access and equal treatment for survivors regardless of the location, operator, type, continued existence or assets of the institution in which they were abused if it is to be regarded by survivors as being capable of delivering justice.

Recommendation 2 sets out the three foundations by which the proposed redress scheme would provide justice. It states:

Appropriate redress for survivors should include the elements of:

  1. direct personal response
  2. counselling and psychological care
  3. monetary payments.

The primary concerns we in Labor have about the redress scheme the Turnbull government has put forward relate to the failure of the scheme to properly provide for the second and third elements and the significant gaps between what is provided for in this scheme and what was recommended by the royal commission.

I will deal with the requirement of counselling and psychological care first, because the failure of the scheme set out in this bill to comply with the royal commission's recommendations in relation to ongoing counselling and psychological care concerns me most. Recommendation 9 states:

Counselling and psychological care should be supported through redress in accordance with the following principles:

  1. Counselling and psychological care should be available throughout a survivor's life.
  2. Counselling and psychological care should be available on an episodic basis.
  3. Survivors should be allowed flexibility and choice in relation to counselling and psychological care.
  4. There should be no fixed limits on the counselling and psychological care provided to a survivor.

The redress report also states:

It is clear that many survivors will need counselling and psychological care from time to time throughout their lives. At times, a survivor may need very intensive therapy and support. At other times, a survivor may go for years without needing counselling or psychological care.

Survivors told us in private sessions and public hearings about the severe and sometimes lifelong impact that institutional child sexual abuse can have across all of these areas of life.

We have been given many examples of the severe impacts that untreated trauma of institutional child sexual abuse has had on survivors. We have had a number of private sessions with relatives of victims of institutional child sexual abuse who have committed suicide. Their relatives have told us of the terrible impact that the abuse had on the victims and the ongoing impact that the abuse and victims' suicides has had on their families.

Recommendation 11 deals with the need for ongoing care by explicitly stating:

Redress should fund counselling and psychological care as needed by survivors rather than providing a lump sum payment to survivors for their future counselling and psychological care needs.

The redress scheme set out in this bill directly contradicts those explicit recommendations of the royal commission and, instead, provides for a lump sum payment for counselling and psychological services. This is cause enough for concern, but it is of even greater concern to us that the maximum amount of the lump sum payment that will be available is $5,000. To put this amount in perspective, the Australian Psychological Society's current recommended schedule of fees sets the standard fee for a 45-60 minute consultation at $246. That means that a survivor who received the maximum redress payment for counselling of psychological services and who paid a standard fee to a psychologist for individual sessions would be able to pay for approximately 20 sessions with a registered psychologist.

The royal commission consulted extensively with survivors, their families and mental health experts in making its recommendations, and, given that it has recommended the need to provide for psychological care on an ongoing basis when it is required for the survivor's life, it is very concerning that a decision has been made to instead provide a lump sum payment of up to $5,000 for a lifetime of psychological care. That is 20 sessions only, even for survivors of the worst kinds of child sexual abuse, to last them for the rest of their lives. Of course, it's true that some survivors may not seek psychological support at all, but some survivors who will make claims for redress will need far more than the $5,000 on offer under this scheme. Some may still be teenagers with many years of psychological struggle ahead of them. In ignoring the explicit recommendations of the royal commission for lifetime care in this context and instead proposing a maximum lump sum of $5,000, the government was obviously not informed by any kind of medical evidence.

The royal commission also recommended that a range of changes be made to Medicare to help provide for rest-of-life psychological care to survivors of child sexual abuse. It may be that the government is intending to act on those recommendations to fill the gap in care this scheme creates. If that is the case, I look forward to seeing those changes.

I turn now to the second issue of concern: the quantum of monetary payments. The royal commission recommended that the maximum level of monetary payment for the most severe cases of child sexual abuse should be $200,000. The commission reached this conclusion after careful deliberation and extensive evidence regarding the appropriate monetary payment to provide tangible recognition of the seriousness of the hurt and injury suffered by a survivor. While payments under the redress scheme are not meant to be compensatory in the same way that damages from a civil claim against an abuser would be, I note that survivors of the most heinous forms of child sexual abuse have been recovering in excess of $1 million in civil actions against their abusers. In this context, the decision of the Turnbull government to reduce the maximum amount payable to survivors of the most serious forms of child sexual abuse to $150,000 is deeply disappointing to Labor, as I'm sure it will be to many survivors. How is it that the Turnbull government has no problem finding $80 billion to give to big businesses in tax cutsincluding $17 billion just to the banks, which already make billions of dollars in profit a year and pay their executives multimillion dollar bonusesbut says it has no choice but to short-change the survivors of childhood sexual abuse?

The third issue I want to raise is the question of who will step in to make payments to survivors when no-one else is liablethe so-called funder of last resort. Once again, the royal commission was explicit on this matter and recommended that the Commonwealth, as well as state and territory governments, should act as funders of last resort to ensure that no survivor eligible for the scheme is left without a source of redress. It appears from this bill that these recommendations may not have been fully implemented, and there remain questions over who a survivor will be able to seek redress from if the institution in which they were abused is no longer in existence and had no links to government. It's my expectation that any gaps of this kind will be addressed as the scheme is rolled out so that no survivor eligible for redress is left unable to seek it.

In conclusion, I once again thank the royal commissioners and all of those involved in the commission's work for their tireless efforts. While the redress scheme provided for in these bills is late and falls short in some important respects from the scheme recommended by the royal commission, I have no doubt that it will provide a measure of justice to survivors, and I commend both bills to the House.