Redress for All Forms of Abuse.

Senator Derryn Hinch was a member of the Senate Committee examining the Bill before the Parliament on a national redress scheme.

The Senator demonstrated that not all politicians come to meetings like this one with a closed mind. A few days after the hearing, he posted the following part of his diary on Crikey.com.

These are the notes I spoke to at the Senate Committee hearing.

Senators, and Senator Hinch in particular will take a special interest in my comments, if the legislation proceeds as it is currently constructed, the Parliament will be doing a great injustice to a great number of Care Leavers

I want to make two key points:

The first is that a hierarchy of suffering has been an unintended consequence of the Royal Commission

Article 19 of the UN Convention on the Rights of the Child requires governments to take

“measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

 The Royal Commission could not include other forms of abuse into its report on redress because it had no mandate in its Letters Patent (Redress Report p.6). This should not be taken as a warrant—rigid, inflexible and mandatory—for the national Parliament to establish a one-dimensional sexual-abuse-only model of redress. Only a small minority of redress schemes around the world have focussed on sexual abuse only (18% says Prof Kathleen Daly)

The Royal Commission was well aware of the impact of having its arms tied, especially when it came to redress. It acknowledged that

…the requirement that we examine child sexual abuse in an institutional context gives us a narrower focus than most government and non-government institution redress schemes have had (Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report, 2015, p. 5).

And the Commission went on to say:

“Most previous and current redress schemes cover at least sexual and physical abuse. Some also cover emotional abuse or neglect”. (Royal Commission Redress and Civil Litigation Report, p. 102).

They were alluding to a number of precedents for redress that cover a wide range of abuse

• Tasmania – 2003 abuse included sexual abuse, physical abuse and mental or emotional abuse while in state care (but not those placed in Homes voluntarily). The Tasmanian ex gratia payment was “was a payment in recognition of the alienation claimants have felt, the feeling of being inferior and unworthy and their separation from society and community, support, schools and employers.” (RC Redress report p. 553)
• Queensland – 2007 Categories of harm were listed as physical injury, physical illness, psychiatric illness, psychological injury and loss of opportunity, with applicants able to include other types of harm in Homes covered by the Forde Inquiry 1999 (but did not extend to abuse in foster care)
• WA – physical and emotional abuse and neglect as well as sexual abuse. Unlike Queensland, the WA scheme also covered foster care.
• The Victorian Betrayal of Trust report 2013 recommended redress in relation to “criminal abuse of children” including “unlawful physical assaults, sexual abuse offences…acts of criminal neglect, and the facilitation of such offences by others.”

Please note: If past payments are to be taken into account how will the national scheme determine what part of the previous payment was made in respect of sexual abuse and what parts in respect of other forms of abuse or neglect?

The first full report by the UK Independent Inquiry into Child Sexual Abuse (IICSA) 2018 recommends that survivors of a post-war child migration scheme should be paid compensation by the government at state-run orphanages and church-run institutions for suffering that included

• medical neglect,
• physical mistreatment
• exploitation of labour
• separation from their families and
• sexual exploitation.

There is no impediment—legal or moral—to the Parliament including all forms of abuse in a national redress scheme. It’s not for want of evidence or grounded recommendations on redress. That’s there in

• the Aboriginal Deaths in Custody report 1991,
• the Bringing Them Home report published in 1997 and
• the Senate Committee reports tabled in 2002 (Child Migrants) and 2004 (Forgotten Australians),
• not to forget the Senate reports in 2009 on progress on the implementation of recommendations of the Child Migrants and Forgotten Australians reports, and
• 2010 on Government Compensation Payments.

Care Leavers agree with the Law Council of Australia (Submission 82, p. 5—and who are appearing this afternoon)

… while the Royal Commission was restricted by Letters Patent to only make recommendations about sexual abuse, governments and institutions are not so limited and can and should extend the findings to all forms of child abuse, including serious physical abuse that occurred in or around institutions and caused serious and long-term damage. The Law Council suggests that the Government should consider appropriate reform so that victims of severe physical abuse and neglect, deprivation of education or separation from culture, which can also have lifelong implications, can access appropriate redress.

Many other submissions make a similar point.

The majority of care leavers were not directly sexually abused in OOHC, but the Royal Commission’s strict interpretation of its terms of reference excluded those who “only” experienced

• cruel physical assault,
• emotional abuse,
• the use of solitary confinement
• exploitation of unpaid labour,
• neglect of health and education;
• subjection to unauthorised medical trials or placement in adult mental health facilities;
• and those vast numbers who were stripped of personal identity and were terminally separated from their parents and siblings.

Many who were not given the opportunity to give voice to their abuse at the Royal Commission nurse the feeling that their abuse is considered subordinate or inferior. Having learned as children never to trust authority, many were re-traumatised by being sidelined for five years tenure of the Royal Commission and then being totally excluded by a government they thought would “do the right thing” by them, especially regarding redress.

Many care leavers who were not sexually abused have had to put their traumatic childhood lives on hold for the five years of the commission’s tenure—and a deep-seated feeling of betrayed by government.

Vol. 11 of the RC’s Final Report on Historic Residential Institutions described cruel brutality and violence that marked the childhoods of residents. Case studies like Case Study 30 on Victorian Youth Training Centres, Nos 5 and 33 which examined abuse in Salvation Army Homes, were chock full of references to other forms of abuse—and not only when they were associated with sexual abuse.

§§§

My second point is that there is a clear hierarchy of victimisation between Care Leavers and not Care Leavers.

If the Parliament goes ahead on the basis of one single redress scheme for children who grew up in OOHC as well as those who did not—Care Leavers and not Care Leavers—it will be the only scheme anywhere in the world that deals with both categories of victim or survivors, with the exception of the Australian Defence Force Reparations Scheme.

Parliament must recognise the significant differences between the two categories of survivors. The primary difference lies in the legal and moral obligations and responsibilities carried by the institutions.

Non-residential or open settings—such as sporting clubs, church activities, scouts, youth groups, schools, and even boarding schools—have a contracted duty of care on a short-term and voluntary basis, and crucially those who ran these organisations did not replace the role of parents.

Residential institutions such as orphanages, children’s Homes, youth training centres and foster care were closed, total institutions and had legal responsibility 24/7 for the long-term care of children in the place of parents.

Children in these institutions endured not only full-time legal separation from their parents (and often from their siblings too), but also were isolated from the community, and had no capacity for independent reporting to police or other authorities and were without a caring parent or protective adult.

Abuse of children in these institutions was qualitatively different from abuse in open community organisations—and should be treated differently in any redress scheme.

Abuse in closed institutions was inescapable and unrelieved. Those who ran these institutions were in total control of the lives of children who had been sent to them precisely to provide the care and protection that their parents were deemed incapable of providing. The betrayal of trust was absolute in the case of wards of the state—the state assumed permanent and complete responsibility for their care, and failed them.

As well as hierarchy of suffering with sexual abuse at the only and other forms of abuse discounted or not ranking at all, Prof Kathleen Daly shows that there is a hierarchy of victimisation wherein victims in residential care were awarded redress payments around 40% less than victims of abuse in educational or religious settings.

This is to do with the social status of the respective groups as well as reflecting the degree of difficulty former residents of OOHC have in establishing a case when they have absolutely no support for their abuse compared with the family, social, and legal support available to victims of abuse in school and church settings.