While the Royal Commission into Child Sex abuses has been hugely important, we now need a government to be as strong as the victims.
Royal Commissions don’t change laws. Done well they give voice to people who have been silenced and they can challenge powerful institutions and powerful people who otherwise avoid scrutiny by parliaments or courts. However history is littered with recommendations from Royal Commissions that have never been implemented. Think for one moment of the hundreds of recommendations from the Aboriginal Deaths in Custody Royal Commission that decades later remain just that: recommendations not laws.
So it is extremely heartening to see parliaments, state and federal, already moving to implement the majority of the recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. This is testimony to the power of the personal stories told by victims, survivors and their advocates. It is also a result of the dignity, competence, balance and professionalism of the Royal Commission itself. Rarely have we seen government done so well. The end result is that politicians have felt forced to act, and act promptly, to implement the recommendations.
So what exactly is being implemented?
This week we saw Malcolm Turnbull announce a national apology to victims of child sexual abuse in institutions. This follows recent announcements from all states and most institutions that they will sign on to the redress scheme, allowing the entire national scheme to commence on 1 July 2018.
Yet, as is so often the case in politics, the commitment to change is not complete. The Prime Minister says the government has accepted 104 of the 122 recommendations from the child sex abuse royal commission. This means 18 recommendations are still “under consideration”. Past Royal Commissions have shown us that under consideration can mean either that the recommendations have been put into the too-hard basket, or that they will be delayed until they are forgotten or have lost much of their meaning.
In NSW the Government also does not have a commitment to implement all of the recommendations it is responsible for. This is the ever-present gap between the promise of justice and its delivery.
First the good news. While not perfect, the NSW Government has committed to implementing very meaningful criminal and civil law reforms. Next week the NSW Parliament will be voting on implementing a raft of Royal Commission recommendations to criminal law.
The changes include new criminal offences of failing to reduce or remove the risk of child sexual abuse and increased penalties for persistent child sexual abuse. They make it easier for child victims of sexual abuse to prove offences in court and they update sentencing to better reflect current understandings of the seriousness of offending against children.
There will be a number of changes to civil law before the end of 2018. Among them is the repeal of the Ellis Defence, a defence used by the Catholic Church to make it impossible for victims to sue the church directly for compensation for harm suffered.
The confessional stands between police, courts and the truth. It should go, and next week we will be moving amendments in Parliament to do just that.
This is heartening, but it shouldn’t have taken them so long. We first raised this obstacle to justice in 2011, and five years ago introduced an Australian-first bill to remove the defence. It should not have taken seven years and a whole Royal Commission to make this simple change that will mean victims of child sexual abuse will finally be able to sue the Catholic Church for the harm done to them. We could have made this change then, but of course will still support it now.
We welcome the changes promised to vicarious liability, where institutions declaim responsibility to subordinate’s actions who have used their positions to carry out abuse. The NSW Attorney General Mark Speakman has promised to make institutions legally liable for child sexual abuse committed by employees, as well as volunteers and religious officers. These changes have also been a long time coming.
One of the key recommendations that is being strongly resisted is removing the archaic protection given to religious confessions. There should be no special treatment at law, and definitely no exemption to the offence of concealment of child sexual abuse, for information received in the Catholic confessional. The NSW government has proposed slight improvements to this aspect of the law, but proposes to continue to require the Attorney General to consent to any prosecution arising of a member of clergy for failure to disclose.
The confessional remains as both a real and symbolic obstacle to justice. This legal relic stands between police, courts and the truth. It should go, and next week we will be moving amendments in Parliament to do just that.
Many more of the Royal Commission’s recommendations have also not yet made it into law. This includes essential updates to policy and procedures in the courts. These are needed to remove barriers for victims of child sexual abuse to get to court and to ensure their evidence is fairly judged and not simply dismissed because it is the recollections of a child or considered too old to be believed.
This whistle-stop list of legal reforms, political commitments and public statements highlights how quickly change is happening. As recently as 2011 survivors were still very much on the political margins while senior members of the clergy were feted by governments and politicians. In less than a decade we have seen a radical reversal of positions. In 2018 victims and survivors are being invited to parliaments and senior members of churches and other institutions are on trial for their past abuse, and alleged abuse.
The recent conviction of Archbishop Philip Wilson for concealing child sexual abuse came with a statement from the magistrate saying Wilson knew he was hearing credible allegations and failed to inform the police because he wanted to protect the church and its reputation. While parliaments have understood the public mood, the Catholic Church has been slower to recognise public sentiment. In May this year the Australian Catholic Bishops Conference issued a statement in response to Philip Wilson’s guilty verdict as follows:
Archbishop Philip Wilson has today been found guilty of failing to inform police about allegations of child sexual abuse. Archbishop Wilson maintained his innocence throughout this long judicial process. It is not yet clear if he will appeal the verdict.
The Catholic Church, like other institutions, has learned a great deal about the tragedy of child sexual abuse and has implemented stronger programs, policies and procedures to protect children and vulnerable adults. The safety of children and vulnerable adults is paramount for the Church and its ministries.
It is extraordinary that their statement wasn’t even able to acknowledge Wilson’s guilty finding, or that the church betrayed those that it should have kept safe. It failed the most basic test of saying sorry.
We are committed to ensuring that all the recommendations of the Royal Commission are implemented. This requires political will, and ongoing determination. It’s not enough just to have the Royal Commission, and to issue an apology – you need to follow through and take every possible step to addressing the gross injustices raised. As always, there’s plenty more work to do.