FINAL REPORT Preface and executive summary Royal Commission into Institutional Responses to Child Sexual Abuse ISBN 978-1-925622-48-5 © Commonwealth of Australia 2017 All material presented in this publication is provided under a Creative Commons Attribution 4.0 Australia licence (www.creativecommons.org/licenses). For the avoidance of doubt, this means this licence only applies to material as set out in this document. The details of the relevant licence conditions are available on the Creative Commons website as is the full legal code for the CC BY 4.0 AU licence (www.creativecommons.org/licenses). Contact us Enquiries regarding the licence and any use of this document are welcome at: Attorney-General’s Department 3-5 National Circuit Barton, ACT 2600 Email: copyright@ag.gov.au Final Report: Preface and executive summary FINAL REPORT Preface and executive summary Royal Commission into Institutional Responses to Child Sexual Abuse Content warning This volume contains information about child sexual abuse that may be distressing. We also wish to advise Aboriginal and Torres Strait Islander readers that information in this volume may have been provided by or refer to Aboriginal and Torres Strait Islander people who have died. Final Report: Preface and executive summary Table of contents Preface 1 Executive summary 5 A national tragedy The inquiry and our reports The survivors The perpetrators Where did abuse occur? Survivors from diverse backgrounds How does sexual abuse affect children? The 'why?' question Why have some institutions not protected children? What influences a child's vulnerablilty to sexual abuse? Disclosing abuse – adults need to be alert Keeping children safe A national investment in child safety Keeping children and young people safe online Complaints – how should institutions respond? Handling complaints – many institutions failed Poor records cause problems Sharing information about possible perpetrators Support services for victims and survivors Children with harmful sexual behaviours Residential institutions – major problems Out-of-home care Religious institutions Schools Sport, recreation, arts, culture, community and hobby groups Contemporary detention environments Australian Defence Force Our earlier reports Beyond the Royal Commission Royal Commission into Institutional Responses to Child Sexual Abuse 5 7 8 10 10 13 15 17 20 21 22 24 26 28 28 30 31 32 33 36 38 39 43 81 85 89 93 94 99 Structure of the Final Report 102 Final Report recommendations 105 Volume 2, Nature and cause recommendations 106 Measuring extent in the future 106 Volume 6, Making institutions child safe recommendations 107 Creating child safe communities through prevention What makes institutions safer for children Improving child safe approaches Preventing and responding to online child sexual abuse in institutions Volume 7, Improving institutional responding and reporting recommendations Reporting institutional child sexual abuse Improving institutional responses to complaints Oversight of institutional complaint handling 120 120 121 122 Volume 8, Recordkeeping and information sharing recommendations Records and recordkeeping Improving information sharing across sectors Improving information sharing in key sectors 125 125 127 128 Volume 9, Advocacy, support and therapeutic treatment services recommendations Dedicated community support services for victims and survivors National service to navigate legal processes National telephone helpline and website Enhancing the capacity of specialist sexual assault services Responsive mainstream services National leadership to reduce stigma, promote help-seeking and support good practice Volume 10, Children with harmful sexual behaviours recommendations A framework for improving responses Improving assessment and therapeutic intervention Strengthening the workforce Improving evaluation 107 109 112 117 133 133 133 134 134 135 135 136 136 136 137 137 Final Report: Preface and executive summary Volume 12, Contemporary out-of-home care recommendations Data collection and reporting Accreditation of out-of-home care service providers Carer authorisation Child sexual abuse education strategy Creating a culture that supports disclosure and identification of child sexual abuse Strengthening the capacity of carers, staff and caseworkers to support children Identifying, assessing and supporting children with harmful sexual behaviours Preventing and responding to child sexual exploitation Increasing the stability of placements Supporting kinship/relative care placements Residential care Aboriginal and Torres Strait Islander children Children with disability Care-leavers Volume 13, Schools recommendations Child Safe Standards Supporting boarding schools Responding to complaints relating to children with harmful sexual behaviours Guidance for teachers and principals Teacher registration 138 138 139 139 140 140 141 141 142 142 142 143 143 144 144 145 145 145 146 146 146 Volume 14, Sport, recreation, arts, culture, community and hobby groups recommendations 147 Child Safe Standards A representative voice for the sector Expanding Play by the Rules Improving communication Volume 15, Contemporary detention environments recommendations Contemporary detention environments Youth detention Immigration detention Royal Commission into Institutional Responses to Child Sexual Abuse 147 147 147 147 148 148 148 151 Volume 16, Religious institutions recommendations 153 Recommendations to the Anglican Church Recommendations to the Catholic Church Recommendations to the Jehovah’s Witness organisation Recommendations to Jewish institutions Recommendations to all religious institutions in Australia Volume 17, Beyond the Royal Commission recommendations Monitoring and reporting on implementation Preserving the records of the Royal Commission A national memorial to victims and survivors of child sexual abuse in institutional contexts Working With Children Checks report recommendations (2015) General Standards Governance Redress and civil litigation report recommendations (2015) Justice for victims Redress elements and principles Direct personal response Counselling and psychological care Monetary payments Redress structure and funding Redress scheme processes Interim arrangements Limitation periods Duty of institutions Identifying a proper defendant Model litigant approaches 153 154 158 158 159 164 164 165 165 166 166 167 175 176 176 176 177 178 180 182 185 190 191 192 193 193 Final Report: Preface and executive summary Criminal justice report recommendations (2017) Our approach to criminal justice reforms Current police responses Issues in police responses Police responses and institutions Persistent child sexual abuse offences Grooming offences Position of authority offences Limitation periods and immunities Failure to report offence Failure to protect offence Issues in prosecution responses DPP complaints and oversight mechanisms Tendency and coincidence and joint trials Evidence of victims and survivors Judicial directions and informing juries Delays and case management Sentencing Appeals Juvenile offenders Royal Commission into Institutional Responses to Child Sexual Abuse 194 194 194 194 200 201 202 202 202 203 205 206 208 208 210 212 215 215 216 217 Final Report: Preface and executive summary Preface The Royal Commission into Institutional Responses to Child Sexual Abuse was established in response to allegations of sexual abuse of children in institutional contexts that had been emerging in Australia for many years. Victims and survivors of child sexual abuse, and those who represent and support them, had advocated consistently for government action. The sexual and other abuse of children in institutional settings, and the reluctance of the institutions involved to address the issue, had been the subject of public and parliamentary discussion for a number of years. In 1997, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families outlined allegations of institutional sexual abuse of Aboriginal and Torres Strait Islander children. The reports of two later major national inquiries, Forgotten Australians: A report on Australians who experienced institutional or out-of-home care as children in 2004 and Protecting vulnerable children: A national challenge in 2005, recommended the establishment of a Royal Commission into the sexual assault of children and young people in institutions after those inquiries heard further allegations of institutional child sexual abuse. These recommendations were not taken up by government at the time. A number of subsequent inquiries at a state level, together with continuing pressure from survivor support groups, resulted in an increasing public awareness and increased pressure for a national response. The then Prime Minister, the Hon. Julia Gillard, MP, announced the decision to establish a Royal Commission into institutional responses to child sexual abuse on 12 November 2012. Over 16,000 individuals have contacted the Royal Commission and by the time we conclude our work we expect to have heard more than 8,000 personal stories in private sessions. Over 1,000 survivors have provided a written account of their experience, which has been read and responded to by a Commissioner. For victims and survivors, telling their stories has required great courage and determination. We have also heard from parents, spouses and siblings about the abuse of their relatives, many of whom have died, sometimes by suicide. We now know that countless thousands of children have been sexually abused in many institutions in Australia. In many institutions, multiple abusers have sexually abused children. We must accept that institutional child sexual abuse has been occurring for generations. Royal Commission into Institutional Responses to Child Sexual Abuse 1 For many survivors talking about past events required them to revisit traumatic experiences which have seriously compromised their lives. Many spoke of having their innocence stolen, their childhood lost, their education and prospective career taken from them and their personal relationships damaged. For many, sexual abuse is a trauma they can never escape. It can affect every aspect of their lives. We also witnessed extraordinary personal determination and resilience among victims and survivors. We saw many survivors who, with professional help and the support of others, have taken significant steps towards recovery. The Commissioners thank each of the survivors who told us their story. They have had a profound impact on the Commissioners and our staff. Without them we could not have done our work. Each survivor’s story is important to us. These stories have allowed us to understand what has happened. They have helped us to identify what should be done to make institutions safer for children in the future. It has been a privilege for the Commissioners to sit with and listen to survivors. The survivors are remarkable people with a common concern to do what they can to ensure that other children are not abused. They deserve our nation’s thanks. Many survivors have been assisted by organisations whose purpose is to support them and advocate on their behalf. Early in our work we met with the leaders of these groups and we continued to work with them throughout the Royal Commission. They helped us to develop an appropriate private sessions process and worked with our counsellors to ensure the wellbeing of all survivors we heard from. Supporters and advocates assisted in the preparation of written accounts, attended as support persons in private sessions and assisted witnesses in our public hearings. They have our great respect for the remarkable work they do, often with limited resources. To gain an appropriate understanding of past events and develop recommendations to bring effective change across a broad range of complex issues, we needed the cooperation of many people and institutions. Although this was not always the case, many institutions and government agencies accepted that they had failed and engaged constructively in discussions about how they should change. The Commissioners thank the governments and all of the institutions and individuals who participated in our various consultation processes, including our many roundtables, which have assisted in developing our recommendations. We also thank the media organisations for their interest in and comprehensive reporting of the Royal Commission’s work. Many media outlets provided extensive coverage. The ABC reported every case study on television, radio and online almost every sitting day. 2 Final Report: Preface and executive summary The work of the Royal Commission in many areas was led by Ms Gail Furness SC, Senior Counsel Assisting. Together with a number of other counsel, she was responsible for the multiple forensic tasks required of the Royal Commission. However, her contribution to the inquiry extended well beyond those tasks. She played a significant role in the development of our recommended policy responses in many areas. The Royal Commission was fortunate in being able to second police officers to work within the organisation. Their work was fundamental to our ability to gather information. We also established arrangements with the federal and state police forces that ensured the efficient exchange of information regarding alleged offences and offenders. More than 680 people worked for the Royal Commission during its life, across the varied range of our activities. The Commissioners thank each of them. Although the work was stressful and often confronting, they came to the Royal Commission intent on seeing change to improve the safety of children and a just response for survivors. A number of aspects of our work were unique, particularly our engagement with survivors and the wider community. Our research and policy development covered a broad range of issues. Our public hearings required intense and comprehensive preparation. The development of our conclusions, recommendations and reports involved input from staff across the organisation. Our senior management team, together with the Chief Executives, ensured that the Royal Commission completed our task in a timely manner and within budget. We are particularly appreciative of the contribution of Chief Executive Mr Philip Reed to the Royal Commission’s effective operation. It is now apparent that across many decades, many of society’s institutions failed our children. Our child protection and criminal and civil justice systems let them down. Although the primary responsibility for the sexual abuse of a child lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society. Society’s values and mechanisms which were available to regulate and control aberrant behaviour failed. Although risks in institutional contexts may vary as our institutional structures evolve and our means of social interaction change, it is a mistake to assume that sexual abuse in institutions will not continue to occur in the future. There is a need for the continuing development of effective government regulation, improvement in institutional governance and increased community awareness of child sexual abuse in institutions. There is also a need for community education on risks to children. We must also develop our understanding of the needs of those who have been abused and be prepared to respond to those needs. Royal Commission into Institutional Responses to Child Sexual Abuse 3 Now that the Royal Commission has completed its work, it is the responsibility of governments and institutions to consider and respond to our conclusions and recommendations. The Commissioners are aware of many measures already implemented to better protect children and respond to the needs of survivors. Although, inevitably, the Royal Commission has looked at past events, it is important that the momentum for change initiated by the Royal Commission’s work is not lost and that lasting changes to protect children are implemented. The Royal Commission has been concerned with the sexual abuse of children within institutions. However, notwithstanding the problems we have identified in institutions, the number of children who are sexually abused in familial or other circumstances far exceeds those who are abused in an institution. The sexual abuse of a child is intolerable in a civilised society. It is the responsibility of our entire community to acknowledge that children are vulnerable to abuse. We must each resolve that we will do what we can to protect them. The tragic impact of abuse for individuals and through them our entire society demands nothing less. 4 Final Report: Preface and executive summary Executive summary A national tragedy The allegations that have come to light recently about child sexual abuse have been heartbreaking. These are insidious, evil acts to which no child should be subject. The individuals concerned deserve the most thorough of investigations into the wrongs that have been committed against them. They deserve to have their voices heard and their claims investigated. I believe a Royal Commission is the best way to do this. Prime Minister Julia Gillard when announcing the Royal Commission The sexual abuse of a child is a terrible crime. It is the greatest of personal violations. It is perpetrated against the most vulnerable in our community. It is a fundamental breach of the trust that children are entitled to place in adults. It is one of the most traumatic and potentially damaging experiences and can have lifelong adverse consequences. Tens of thousands of children have been sexually abused in many Australian institutions. We will never know the true number. Whatever the number, it is a national tragedy, perpetrated over generations within many of our most trusted institutions. The sexual abuse of children has occurred in almost every type of institution where children reside or attend for educational, recreational, sporting, religious or cultural activities. Some institutions have had multiple abusers who sexually abused multiple children. It is not a case of a few ‘rotten apples’. Society’s major institutions have seriously failed. In many cases those failings have been exacerbated by a manifestly inadequate response to the abused person. The problems have been so widespread, and the nature of the abuse so heinous, that it is difficult to comprehend. This report details our findings and recommendations. It also contains our conclusions in respect of the institutions we examined in our public hearings. It should not be assumed that many other institutions have not had significant problems. Many have. More than 4,000 individual institutions were reported to us as places where abuse has occurred. While some of these institutions have ceased to operate, others continue to actively engage with children and young people. Our resources and the risk of prejudicing criminal investigations or prosecutions meant that we could not publicly examine or report on many institutions in which survivors told us they had been sexually abused. The failure to protect children has not been limited to institutions providing services to children. Some of our most important state instrumentalities have also failed. Police often refused to believe children. They refused to investigate their complaints. Many children who had attempted to escape were returned to unsafe institutions by police. Child protection agencies did not listen to children. They did not act on concerns, leaving them in situations of great Royal Commission into Institutional Responses to Child Sexual Abuse 5 danger. Our criminal justice system has created many barriers to the successful prosecution of alleged perpetrators. Investigation processes were inadequate and criminal procedures were inappropriate. Our civil law placed impossible barriers on survivors bringing claims against individual abusers and institutions. It is remarkable that in so many cases the perpetrator of abuse was a member of an organisation that professed to care for children. Just as remarkable was the failure of the leaders of that institution to respond with compassion to the survivor. Many institutions we examined did not have a culture where the best interests of children were the priority. Some leaders did not take responsibility for their institution’s failure to protect children. Some leaders felt their primary responsibility was to protect the institution’s reputation, and the accused person. Many did not recognise the impact this had on children. Poor practices, inadequate governance structures, failures to record and report complaints, or understating the seriousness of complaints, have been frequent. Many children have been sexually abused in religious institutions in Australia. Based on the information before us, the greatest number of alleged perpetrators and abused children were in Catholic institutions. In many religious institutions, the power afforded to people in religious ministry and the misplaced trust of parents combined with aspects of the institutional culture, practices and attitudes to create risks for children. Alleged perpetrators often continued to have access to children even when religious leaders knew they posed a danger. We heard that alleged perpetrators were often transferred to other locations but they were rarely reported to police. The failure to understand that the sexual abuse of a child was a crime with profound impacts for the victim, and not a mere moral failure capable of correction by contrition and penance (a view expressed in the past by a number of religious leaders) is almost incomprehensible. It can only be explained by acknowledging that the culture of some religious institutions prioritised alleged perpetrators and institutional reputations over the safety of children. In past generations, the trust placed by some parents and the broader community in institutions and their members meant that abusers were enabled and children’s interests were compromised. The prevailing culture that ‘children should be seen and not heard’ resonated throughout residential care, religious institutions, schools and some family homes. Their complaints of abuse ignored and rejected, many children lost faith in adults and society’s institutions. While we heard of child sexual abuse in institutions that spanned the past 90 years, it is not a problem from the past. Child sexual abuse in institutions continues today. We were told of many cases of abuse that occurred in the last 10 to 15 years in a range of institutions, including schools, religious institutions, foster and kinship care, respite care, health and allied services, performing arts institutions, childcare centres and youth groups. We heard in private sessions from children as young as seven years of age who had been recently abused. In some of our 6 Final Report: Preface and executive summary case studies into schools, the abuse was so recent that the abused children were still attending school. We learned that cultures and practices in some institutions allowed this more recent abuse to occur and continue. The Commissioners have listened to the personal stories of over 8,000 survivors and read over 1,000 written accounts. Most are stories of personal trauma and many are of personal tragedy. It is impossible not to share the anger many survivors have felt when we understand that they were so deeply betrayed by people they were entitled to trust. Many speak of a childhood lost, innocence stolen, and a life journey irreparably and adversely changed. Protecting children and promoting their safety is everyone’s business. It is a national priority that requires a national response. Everyone – the Australian Government and state and territory governments, sectors and institutions, communities, families and individuals – has a role to play in protecting children in institutions. Valuing children and their rights is the foundation of all child safe institutions. Improving child safe approaches in institutions will reduce the risk of sexual abuse. The best interests of children must be the primary consideration. There may be leaders and members of some institutions who resent the intrusion of the Royal Commission into their affairs. However, if the problems we have identified are to be adequately addressed, changes must be made to the culture, structure and governance practices of institutions. A failure to act will inevitably lead to the continuing sexual abuse of children, some of whom will suffer lifelong harm. That harm can be devastating for the individual. It also has a cost to the entire Australian community. Many survivors will require help with health, particularly mental health, housing and other public services. The inquiry and our reports The Royal Commission was constituted as an inquiry for the Commonwealth and each of the states and territories. The Letters Patent required us to ‘inquire into institutional responses to allegations and instances of child sexual abuse and related matters’. We were directed to focus on systemic issues, be informed by an understanding of individual cases, and make findings and recommendations to better protect children against sexual abuse and alleviate the impact of abuse when it occurs. Royal Commission into Institutional Responses to Child Sexual Abuse 7 We conducted our inquiry through three ‘pillars’: personal accounts (provided in a private session or in writing); public hearings; and our research and policy work. By the time our work is completed we expect to have heard from more than 16,000 people within our Terms of Reference. We expect to have spoken with over 8,000 people in private sessions and received 1,000 written accounts. We have held 57 public hearings and have published 59 research reports. We also conducted 35 policy roundtables. We have reviewed allegations of sexual abuse in more than 4,000 institutions. This Final Report has 17 volumes. Each volume has been prepared so that it can be read as a self-contained report on the topic or institution to which it relates – as a consequence, there is some repetition between volumes. When considering recommendations designed to improve the safety of children in institutions we utilised a number of approaches. In addition to defining 10 Child Safe Standards that every institution should adopt, we considered the role that institutional management, education, community awareness, civil litigation and criminal justice each can play. No single recommendation or group of recommendations can be expected to achieve the required objective. They must all be considered and, depending on the institution, the relevant recommendations must be taken up to bring an improvement in the safety of children. During the course of the Royal Commission we have already provided government with three final reports – Working With Children Checks, Redress and civil litigation and Criminal justice. We also provided 45 case study reports.1 The survivors By the time the Royal Commission concludes, we expect to have spoken with more than 8,000 survivors in private sessions. In addition, we will have received more than 1,000 written accounts. A summary of information in relation to all of the survivors we heard from in private sessions is available on the Royal Commission website. At the time of writing this report, we had analysed the experiences of 6,875 survivors as told to us in private sessions up until 31 May 2017. From those survivors, where the information was available, we learned that: 8 • the majority of survivors (64.3 per cent) were male • more than half of survivors told us that they were aged between 10 and 14 years when they were first sexually abused • female survivors generally reported being younger when they were first sexually abused than male survivors reported Final Report: Preface and executive summary • 14.3 per cent of survivors were Aboriginal and Torres Strait Islander people • 4.3 per cent of survivors told us they had disability at the time of the abuse • 3.1 per cent of survivors were from culturally or linguistically diverse backgrounds • 93.8 per cent of survivors told us they were abused by a male • 83.8 per cent of survivors said they were abused by an adult • 10.4 per cent of survivors were in prison at the time of their private session • the average duration of child sexual abuse experienced in institutions was 2.2 years • 36.3 per cent of survivors said they were abused by multiple perpetrators. The age of survivors who attended a private session is shown in Figure 1. The largest proportion of survivors was aged between 50 and 59 years (29.3 per cent). Proportion of survivors (%) 40 29.3 30 22.9 20.8 20 9.8 10 0 0.7 1.4 0-9 10-17 6.3 4.2 18-29 1.0 30-39 40-49 50-59 60-69 70-79 80+ Age of survivors at the time of private session (years) Figure 1 – Age of survivors at the time of their private session, from private sessions May 2013 – May 2017 Note: 1.7 per cent of victims were deceased and were represented by others in a private session. Age was unknown for 1.9 per cent of survivors. Royal Commission into Institutional Responses to Child Sexual Abuse 9 The perpetrators People in religious ministry and teachers were the perpetrators we heard about most commonly. Institutional factors that facilitated or enabled perpetrators, whatever the institutional context, to sexually abuse children included: • unsupervised, one-to-one access to a child, such as travelling alone with a child • provision of intimate care to a child or an expectation of a level of physical contact • the ability to influence or control aspects of a child’s life, such as academic grades • authority over a child, particularly in situations with significant control such as a residential setting • spiritual or moral authority over a child • prestige of the perpetrator, resulting in the perpetrator being afforded a higher level of trust and credibility • opportunities to become close with a child and/or their family • responsibility for young children, such as that held by preschool carers • specialist expertise, as in the case of medical practitioners, that enabled perpetrators to disguise sexual abuse. Where did abuse occur? We were told in private sessions about a wide range of institutions where children had been sexually abused. They included childcare services, schools (including religious schools), health and allied services, youth detention, historical residential care (including facilities operated by religious institutions), contemporary out-of-home care, religious institutions, family and youth support services, supported accommodation, sporting, recreational and other clubs, youth employment, and the armed forces (see Table 1). 10 Final Report: Preface and executive summary Table 1 – Number and proportion of survivors by institution type, from private sessions May 2013 – May 2017 All survivors Number Proportion (%) Out-of-home carea 2,858 41.6 Out-of-home care: pre-1990 2,478 36.0 Out-of-home care: 1990 onwards 257 3.7 Out-of-home care: Unknown era 150 2.2 Schools 2,186 31.8 Religious activities 1,000 14.5 Youth detention 551 8.0 Recreation, sports and clubs 408 5.9 Health and allied 192 2.8 Armed forces 76 1.1 Supported accommodation 68 1.0 Family and youth support services 61 0.9 Childcare 32 0.5 Youth employment 17 0.2 Other 213 3.1 Unknown 63 0.9 a Out-of-home care comprises both home-based care and residential institutions. Note: Some survivors told us they were abused in more than one institution type. These survivors have been counted under each institution type identified. Most institution types in Table 1 include institutions managed by religious organisations. More than one in three survivors (36.0 per cent) said they were sexually abused in pre-1990 out-of-home care – primarily in residential institutions, such as children’s homes, missions or reformatories. Just under one-third (31.8 per cent) said they were abused in a school, and 14.5 per cent said they were abused while involved in religious activities, such as attending a church or seminary. More than one in five survivors (21.0 per cent) said they were sexually abused in more than one institution. Of those survivors who told us about the types of institution where they were abused, 58.6 per cent said they were sexually abused in an institution managed by a religious organisation. Almost 2,500 survivors told us about sexual abuse in an institution managed by the Catholic Church. This was 61.8 per cent of all survivors who reported sexual abuse in a religious institution. It was 36.2 per cent of all survivors who came to a private session. Royal Commission into Institutional Responses to Child Sexual Abuse 11 Proportion of survivors who told us they were abused in a religious institution (%) 0 10 20 50 60 70 14.7 Anglican Religious organisations 40 61.8 Catholic 7.3 Salvation Army 4.2 Protestant Presbyterian and Reformed 2.9 Uniting Church 2.4 Other Christian 1.9 Jehovah’s Witnesses 1.7 Baptist 1.0 Pentecostal 0.9 Judaism 0.6 Other religious organisations 30 3.8 Figure 2 – Survivors as a proportion of all survivors who told us they were sexually abused in a religious institution, by religious organisation, from private sessions May 2013 – May 2017 Note: ‘Other religious organisations’ includes Baha’i, Brethren, Churches of Christ, Eastern Orthodox, Hindu, Islam, Latter-day Saints, Church of Jesus Christ of LDS (Mormons), Lutheran, Miscellaneous religions, Oriental Orthodox, Seventh-day Adventist and Unknown religions. Just under one-third (2,203 survivors or 32.0 per cent) of survivors in private sessions told us they were abused in an institution under government management, most commonly schools, out-of-home care, youth detention and healthcare facilities. More than 10 per cent of survivors (714 survivors) told us that they were sexually abused in institutions that were not under government or religious management. Of these survivors, almost two-thirds (63.3 per cent) said the abuse occurred in a private organisation, such as a childcare centre, a medical practice or clinic, a music or dance school, an independent school, a yoga ashram or a sports club. More than one-third (36.1 per cent) told us they were sexually abused in a non-government or not-for-profit organisation. 12 Final Report: Preface and executive summary Survivors from diverse backgrounds Survivors came from diverse backgrounds and circumstances. Some were in prison, and many had grown up in out-of-home care. Some were Aboriginal or Torres Strait Islander people, others came from culturally and linguistically diverse backgrounds and some had been child migrants. Some had disability at the time of the abuse. Many survivors described having non-existent or strained relationships with family and siblings, patterns of unhealthy intimate relationships and difficult relationships with their own children. Some had experienced suicidal thoughts and others had attempted suicide. Survivors also talked about what helped them. We heard how they drew strength and courage from their relationships with family and supportive friends. Some survivors had found value in helping others; looking after grandchildren, advocating for better services for survivors of child sexual abuse and for children generally. Some survivors had been helped by support services. Peer support was also important. Some survivors found comfort in caring for pets, or a purpose and sense of fulfilment from hobbies. Aboriginal and Torres Strait Islander survivors Many survivors who identified as Aboriginal or Torres Strait Islander told us about being abused as children in residential institutions. These included missions, particularly mission dormitories, where there was little or no effective external oversight. These were often violent places where survivors had been humiliated and their identity and culture undermined. Physical, emotional and sexual violence was normalised. Violence by staff towards children, and among children, was condoned or ignored. Many Aboriginal and Torres Strait Islander survivors who said they were abused more recently spoke of abuse in out-of-home care or in youth detention. Many said the institutions had lax policies regulating adults’ interactions with children, leaving children at increased risk and vulnerable to abuse. The trauma of child sexual abuse was often bound up with the trauma of being separated from their family and culture. Most survivors who had been removed as children said this had disconnected them from their family, land and cultural traditions, leaving them without these as resources for recovery and for building their future. Survivors said the trauma associated with their removal and sexual abuse in institutional settings manifested in relationship difficulties passed from generation to generation. They spoke of the importance of connecting to culture to support their resilience and healing. Royal Commission into Institutional Responses to Child Sexual Abuse 13 Survivors with disability at the time of the abuse We heard from many survivors with disability who had faced particular risks in institutions. They described a society in the past where it was common and accepted for children with disability to be removed from their parents and placed in the care of an institution. They spoke of an era when ‘people didn’t have high expectations of people with disabilities’ and where people with disability were ‘out of sight and out of mind’. This can still be an issue today. We were often told that children with disability had both in the past and more recently attempted to disclose sexual abuse to a parent or other adult. For some, their attempts to disclose through verbal and non-verbal means were explained away as part of the disability, rather than recognised as an indication of distress. Survivors with communication and cognitive impairments were particularly reliant on supportive adults noticing and understanding changes in their behaviour after the abuse. Children without protective adults in their lives, including many who lived in residential care, said their attempts to disclose were disbelieved, ignored or punished. Survivors who disclosed to police were often left disappointed; we heard of police not pursuing criminal charges because the victim – who often had a communication or cognitive impairment – was not viewed as a ‘credible witness’. Mainstream and disability-specific services were ill equipped to deal effectively with disclosures of sexual abuse by people with disability. Survivors from culturally and linguistically diverse backgrounds Numerous survivors from culturally and linguistically diverse backgrounds said they had felt a sense of isolation as a child. Discrimination within broader Australian society, language barriers and cultural differences had often increased their, and their family’s, dependence on their communities. Some perpetrators exploited this dependence by creating friendships and offering ‘refuge’ from hostile social conditions. Some tight-knit communities found it hard to report sexual abuse as they feared outside judgement and disintegration of community cohesion. Survivors in prison at the time of the private session The majority of survivors who were in prison when we spoke to them described entrenched disadvantage when they were growing up. From a young age, many were subjected to multiple types of sexual and other abuse. In the absence of any protective adults, they had learned to take care of themselves. Many had come to the attention of police and welfare authorities, when on the street or otherwise trying to fend for themselves. As children these survivors were frequently moved in and out of out-of-home care placements, sometimes homeless, and often spent time in youth detention. Many said youth detention centres were violent places and physical abuse of children by staff was tolerated as a means of enforcing rules. Frequently, we were told that the institutional cultures of youth detention and prison made it impossible to disclose any kind of abuse, especially to authorities and police. 14 Final Report: Preface and executive summary Survivors who were former child migrants We also heard from survivors who were among the thousands of unaccompanied children sent to Australia under approved child migration schemes during the 20th century. They told us of harsh regimes of discipline and control, and a complete disregard for their needs, safety and wellbeing. Many of the institutions they were placed in were remote or closed to the outside world. Interactions between adults and children were poorly supervised, allowing abuse to occur unseen. Numerous former child migrants told us that the sense of isolation, loss and trauma they felt was compounded by being prohibited from having contact with their siblings, even where they were housed in the same institution. Survivors who were children of care-leavers Survivors of child sexual abuse in out-of-home care often told us that their parents had been in care or their children were now in care. They told us their own experiences in care had led to lifelong impacts on their relationships, education and work – disadvantages that increase the risks of intergenerational need for out-of-home care. Many care-leavers still become parents at a young age. They often have limited family or social supports, increasing the risk of their children being placed in care. How does sexual abuse affect children? I felt dirty, and responsible for what happened to me as a child. I have isolated myself … hidden my true feelings. The loneliness I have experienced is overwhelming.2 Sexual abuse can affect different children in different ways. For many, the abuse will have significant lifelong impacts. Some children experience deep, complex trauma, affecting all aspects of their lives. For others the harm may not be as profound. Some impacts are immediate and may be temporary. Others are lifelong. Some emerge later in life; others abate only to re-emerge or manifest in response to triggers or particular life events. As survivors have new experiences or enter new life stages, the consequences of abuse may manifest in different ways. The impacts of child sexual abuse can often be experienced as cumulative harm, resulting from multiple episodes of sexual abuse and other types of child maltreatment over prolonged periods. Many of the survivors we heard from were sexually abused in residential institutions – including orphanages, children’s homes, missions and youth detention facilities. Their adverse life experiences before, during and after the abuse compounded its negative effects. Royal Commission into Institutional Responses to Child Sexual Abuse 15 The numerous aspects of a person’s life that child sexual abuse can affect include: • mental health • interpersonal relationships • physical health • sexual identity, gender identity and sexual behaviour • connection to culture • spirituality and religious involvement • interactions with society • education, employment and economic security. Some victims take their own lives. The most common impact of child sexual abuse is on the survivor’s mental health. The impacts include: depression, anxiety and post-traumatic stress disorder; other symptoms of mental distress such as nightmares and sleeping difficulties; and emotional issues such as feelings of shame, guilt and low self-esteem. Mental health issues were often described as occurring simultaneously, rather than as isolated problems or disorders. After mental health, the impacts survivors most commonly told us about were on their relationships. These included difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Survivors also frequently told us of impacts on their education and economic circumstances. Survivors often told us they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse. This in turn affected their physical and mental health, sometimes leading to criminal behaviour or relationship difficulties. The diverse impacts of child sexual abuse are often interconnected in complex ways, and can be experienced as a cascade of effects over a lifetime. Part of the explanation for the profound and broad-ranging effects of child sexual abuse lies in the detrimental impacts that interpersonal trauma can have on the biological, social and psychological development of a child. Child sexual abuse can result in profound trauma, affecting the chemistry, structure and function of the developing brain and potentially interrupting normal psychosocial development at every critical stage of the formative years. 16 Final Report: Preface and executive summary While the impacts of child sexual abuse in institutional contexts are similar to those of child sexual abuse in other settings, institutional child sexual abuse can also have particular impacts. Distrust and fear of institutions and authority are common effects of institutional child sexual abuse. This distrust and fear can last a lifetime. Many survivors who were sexually abused in an institution fear ending their lives in an aged care institution. In religious contexts, the impacts of child sexual abuse can include a loss of religious faith or loss of trust in the religious institution itself. How institutions respond to child sexual abuse – including their reactions to disclosure, action taken following abuse, and any broader prevention and protection measures they take – can have a profound impact on victims. Inappropriate and damaging responses by institutions can not only place children at risk, they can leave victims and their families feeling betrayed by the institutions they trusted. This can result in re-traumatisation and a fear and distrust of institutions. Child sexual abuse can have ripple effects that reach beyond the abused child. The effects can extend to the victim’s family, carers and friends, to other children and staff in the institution in which the abuse occurred, and to the community and wider society. These ripple effects can be long-lasting, and may affect future generations. My father cried when retelling his story to me and it’s an image that still haunts me. I need his story to be heard so that I might find some place to rest it and bring peace to the past … A child interrupted by abuse reverberates throughout generations and I still feel its impact upon myself and our family. I still feel outrage and anger.3 For some, particularly survivors removed from their families as children, the adverse impacts of child sexual abuse were heightened by their loss of connection to family, culture and country. This often reduced the protective factors and support mechanisms in their lives, both at the time and later as adults. The ‘why?’ question The question often asked is ‘why do some people sexually abuse children?’ For the Royal Commission the issue became ‘why do some people abuse children in institutions?’ The answer is not straightforward. However, there can be little doubt that the structure and practices of some institutions have contributed to the abuse of children. Royal Commission into Institutional Responses to Child Sexual Abuse 17 Why do some adults abuse children? Despite commonly held misconceptions and persistent stereotypes, there is no typical profile of an adult perpetrator. People who sexually abuse children have diverse motivations and behaviours. A range of adults sexually abuse children. Attempting to predict the likelihood of someone being a perpetrator based on preconceptions should be avoided. The strategies used to sexually abuse children are often specific to different contexts. Adult perpetrators in institutional contexts may be strategic in the way they identify, groom and sexually abuse children, and groom others within the institution. Adult perpetrators are overwhelmingly male, although women do sexually abuse children in institutional contexts. Gender may play a role in influencing who commits child sexual abuse. However, gender is not predictive of whether or not a person will become a perpetrator. While the vast majority of people who commit child sexual abuse are men, most men do not sexually abuse children. Risk factors that have been associated with adult perpetrators include: • adverse experiences in childhood, such as physical, emotional and sexual abuse and neglect • interpersonal, relationship and emotional difficulties, including difficulty connecting with other adults, intimacy problems and poor social skills, and emotional affiliation with children • distorted beliefs and ‘thinking errors’ that may facilitate child sexual abuse • indirect influences, such as contextual or ‘trigger’ factors. Researchers have developed typologies to understand adult male perpetrators. However, most perpetrators do not fit neatly into discrete categories. They may exhibit motivations or actions that are representative of more than one ‘type’, or may exhibit elements of different types at different points in time. Typologies provide a useful means of understanding patterns against a background of considerable diversity, but should not be used as a diagnostic tool. We have identified three types that reflect the patterns frequently displayed by adult male perpetrators. The ‘fixated, persistent’ typology aligns most closely with the common stereotype of a ‘predatory child molester’, in that these perpetrators tend to have longstanding sexual attraction to children – however most perpetrators do not fall within the ‘fixated, persistent’ typology. ‘Opportunistic’ perpetrators and ‘situational’ perpetrators are less likely to have a sexual preference for children. 18 Final Report: Preface and executive summary There is a lack of research on female perpetrators, and no typical profile of women who sexually abuse children has been identified. Research suggests that four pre-conditions must be met before an adult will sexually abuse a child. They are: • motivation to sexually abuse • overcoming internal inhibitions the perpetrator may have about sexually abusing a child • overcoming external barriers to accessing a child • overcoming the child’s resistance. These pre-conditions provide a useful framework for understanding why and how an adult perpetrator commits child sexual abuse, and the role an institution plays in facilitating or preventing abuse. To effectively prevent child sexual abuse, each of these pre-conditions must be addressed. Why do some children abuse other children? Tragically, some children have sexually abused other children in institutional contexts. While this abuse should not be minimised, children with harmful sexual behaviours are not the same as adult perpetrators in terms of their understanding of their behaviours, their sexual and emotional development and their legal responsibility. Such behaviours can vary along a wide spectrum, from those that fall outside what is developmentally normal through to behaviours that are coercive and abusive. Some children, particularly younger children, may engage in inappropriate sexual interactions without intending to cause harm to others or understanding they were doing so. Children who exhibit harmful sexual behaviours have often experienced trauma themselves, and require protection and treatment. Most children with harmful sexual behaviours do not go on to perpetrate sexual abuse as adults. The characteristics of children with harmful sexual behaviours are diverse. However, of survivors who told us during private sessions that they were sexually abused by another child, 86.3 per cent said they were abused by a male. Most of the children with harmful sexual behaviours we heard about in private sessions harmed other children in institutions where there was the opportunity for them to be unsupervised with other children. In some cases, the institutional culture and behaviours of adults in the institution facilitated the abuse of children by other children. Royal Commission into Institutional Responses to Child Sexual Abuse 19 Why have some institutions not protected children? And it became increasingly obvious to me that the thing that – I have come to terms with my abuse a long time ago – well, what I have never really been able to come to terms with was the part society played – or didn’t play, I guess, being the point. You know, the people turning the blind eye, the people not recognising things when they were in a position that they should have been educated to recognise. People not wanting to listen. People putting their own businesses, or money, or schools, above the health and wellbeing of a child. These are the things that I find really hard to forgive.4 There is no simple explanation for why child sexual abuse has occurred in a multitude of institutions. However, we have identified a number of ways in which institutions may, inadvertently or otherwise, enable or create opportunities for abuse. All institutions are responsible for removing opportunities for abuse by preventing, identifying and mitigating risks and responding appropriately when abuse occurs. We have learned that: • some institutions are more likely than others to enable adult perpetrators and children with harmful sexual behaviours to sexually abuse children, and to make it more difficult for the abuse to be detected and addressed • the level of risk within a particular institutional context is influenced by the types of activities and services the institution provides, the physical environment, the characteristics of the children in the institution, and, to an extent, organisational management • some institutions, such as closed institutions, carry more risk of child sexual abuse than others and these institutions need to be alert to their heightened risk • children are more likely to be sexually abused in institutional contexts where the community has an unquestioning respect for the authority of the institution. Cultural, operational and environmental factors within institutions can all affect the likelihood of children being sexually abused and the prospect that abuse will be identified, reported and responded to appropriately. Institutional cultural factors include leadership and organisational culture, which shape assumptions, values, beliefs and norms. These influence, among other things, how individuals behave when interacting with children, what is understood to be appropriate and inappropriate behaviour, and how children’s wellbeing and safety are prioritised. Leadership and organisational culture can include risk factors such as the failure to listen to children, or prioritising the reputation of an institution over the safety and wellbeing of children. 20 Final Report: Preface and executive summary Operational factors include governance, internal structure, day-to-day practices, the approach to the implementation of child safe policies and the recruitment, screening and training of staff and volunteers. They can include risk factors such as institutional hierarchies that inhibit identification of abuse and allow perpetrators to remain in positions where abuse can continue. Environmental factors include the characteristics of physical and online spaces that enable potential adult perpetrators and children with harmful sexual behaviours to access victims. They include access to children in isolated or unsupervised locations, and the use of online environments to groom and abuse children. What influences a child’s vulnerability to sexual abuse? I knew it wasn’t right at that age he touched me but, you know, I was only seven. I wasn’t at the age where I could have said, ‘No’ and gone and told someone.5 Wherever there are children there is potential for exploitation and abuse. All children are at risk of sexual abuse where a potential perpetrator or a child with harmful sexual behaviours has access to them. Some children are more vulnerable to child sexual abuse in institutional contexts than others. This can be because they are placed in situations that expose them to higher levels of risk more frequently or for longer periods of time than other children. There are a variety of related factors that may influence the vulnerability of a child to sexual abuse, including: • the gender of the child • the age and developmental stage of the child • whether the child has experienced maltreatment previously • whether the child has disability and the nature of that disability • the family characteristics and circumstances of the child • the nature of the child’s involvement in the institution • other factors, including the child’s physical characteristics, social isolation, level of understanding of sexual behaviour (including sexual abuse) and personal safety, sexual orientation, achievement and level of self-esteem. Some children may be more vulnerable to sexual abuse than others because of their increased exposure to other risk factors. For example, children with disability, Aboriginal and Torres Strait Islander children, and children from culturally and linguistically diverse backgrounds may be exposed more often to circumstances that place them at increased risk of abuse in institutions; Royal Commission into Institutional Responses to Child Sexual Abuse 21 make it less likely they are able to disclose or report abuse; and may make it less likely they will receive an adequate response. Aboriginal and Torres Strait Islander children are significantly over-represented in some high-risk institutional contexts due to a range of historical, social and economic factors, including the impacts of colonisation. Just as there are factors that may increase a child’s vulnerability to sexual abuse, protective factors may reduce their vulnerability. Although the presence of protective factors in a child’s life does not guarantee they will be protected against abuse, they may help to moderate the risk of, and act as safeguards against, abuse. Factors that may decrease the likelihood of a child being sexually abused include: • supportive and trustworthy adults • supportive peers • a child’s understanding of appropriate and inappropriate sexual behaviour, including sexual abuse, and personal safety • a child’s ability to assert themselves verbally or physically to resist the abuse • strong community or cultural connections. The culture and practices of institutions as well as community standards have pivotal roles in reducing a child’s vulnerability to child sexual abuse and in preventing abuse. Disclosing abuse – adults need to be alert For a long time, I have not been able to discuss the abuse I suffered as a child … It wasn’t until a visit to my psychiatrist last year that I managed to raise the issue of the abuse for the first time. Even now, I find the disclosure of the abuse horrendously difficult to tell.6 Children who are sexually abused may exhibit a range of physical, behavioural and emotional symptoms that could be indicators of distress, trauma and abuse. Of course there can be multiple reasons for a change in a child’s or young person’s behaviours or emotions, which can make it difficult to link the indicators to sexual abuse. However, adults need to be aware of and alert to possible indicators, and keep child safety – including the possibility of sexual abuse – in mind when they notice changes in a child. Disclosure of child sexual abuse is rarely a one-off event. It is a process. Victims will disclose in different ways to different people at different times of their lives. Disclosures may be verbal or non-verbal, accidental or intentional, partial or complete. 22 Final Report: Preface and executive summary Victims frequently do not disclose child sexual abuse until many years after it occurred, often when they are well into adulthood. Survivors who spoke with us during a private session took on average 23.9 years to tell someone about the abuse. Men often took longer to disclose than women (the average for male survivors was 25.6 years and for female survivors 20.6 years). Some victims will never disclose. Barriers to disclosure One of the most common barriers to disclosing child sexual abuse is shame or embarrassment. These feelings can overwhelm a victim and have a silencing effect that can last for many years or decades. Of survivors who told us in a private session about their experience of disclosure, feeling ashamed or embarrassed was more common for survivors who told us they had disclosed in adulthood (46.0 per cent) than those who told us they had disclosed in childhood (27.8 per cent). Before disclosing sexual abuse, victims will often weigh up the potential risks and benefits of telling others. Unsurprisingly, victims are less likely to disclose if they feel they will not be believed, expect a negative reaction or response, or believe the disclosure will have negative consequences for them, their families or their communities. Of survivors who told us during their private session about barriers to disclosure, more than one in five (22.6 per cent) who said they had disclosed as an adult and more than one-quarter (26.1 per cent) who told us they disclosed in childhood said they had thought they would not be believed if they spoke up. Victims of child sexual abuse disclose within the context of their own community values and the development of their own gender identities and sexuality. Disclosure is a process that can occur concurrently with children and young people developing their sexual identities. For victims of child sexual abuse, this developmental process can become disrupted or confused by the impact of the abuse. For men, barriers can arise from the myth and the stigma that victims of child sexual abuse become perpetrators. These attitudes around sexuality and gender can affect victims’ and survivors’ decisions to disclose abuse. Understanding that child sexual abuse is harmful and criminal is key to being able to communicate to others that abuse is occurring. Some survivors who told us during their private session about barriers to disclosure said that they did not know the behaviours were abusive (8.2 per cent). Children who are sexually abused at a young age may not have the language or communication skills to convey their experience. Many children do not recognise that the abuse is wrong, or that it is something to be reported. Child sexual abuse in institutions is often perpetrated by someone who is familiar to, and in a position of power and authority over, the child. The perpetrator may be someone who is trusted to provide care for the child. Royal Commission into Institutional Responses to Child Sexual Abuse 23 Perpetrators may inhibit disclosure by threatening the child or their loved ones. Of the survivors who spoke to us in a private session about barriers to disclosure, about one-fifth (20.3 per cent) said they had not disclosed as a child out of a fear of retribution, including from the perpetrator. More than one-quarter (27.8 per cent) who said they had disclosed as a child told us that fear of retribution had stopped them from disclosing sooner. More than one in 20 survivors (5.3 per cent) who spoke to us in a private session about barriers to disclosure told us the perpetrator had threatened them or their family. Child victims and adult survivors need support to overcome multiple and formidable barriers to disclosure. It is not sufficient to educate children to recognise behaviours that constitute sexual abuse and instruct them to tell someone if they are abused. Adults need to be attuned to signs of harm in children and equipped to identify signs of possible sexual abuse. Facilitating disclosure Child safe institutions have a culture of safety that empowers children, prevents child sexual abuse and encourages identification and disclosure. Adults within child focused institutions and the broader community need to better understand the dynamics of sexual abuse. They need to recognise grooming tactics, and to notice emotional and behavioural changes in children and their attempts to disclose. Disclosure can be a traumatic experience for both children and adults. People who receive a disclosure, or become aware of abuse, should be aware of how to react and respond. The reaction of the person to whom a disclosure is made may affect whether the survivor makes future disclosures. It may also affect the severity of psychological symptoms experienced by the survivor. Keeping children safe Why I’m here – or why I put my name down to come forward – is because I want to see change.7 All institutions should uphold the rights of the child and act with the best interests of the child as a primary consideration (Recommendation 6.4). Creating child safe communities through prevention For institutions to be safe for children, the communities in which they operate need to be safe for children. The whole nation can contribute to change to keep children safe. 24 Final Report: Preface and executive summary Our work has shown that within the Australian community, there is a lack of understanding of the nature of child sexual abuse. This includes of the characteristics of adult perpetrators, grooming practices, and risks to children in both physical and online environments. Harmful sexual behaviours by children are also not well understood. Misperceptions, attitudes, beliefs and behaviour in communities can enable, encourage or normalise sexually abusive behaviour towards children. They can also discourage victims from disclosing abuse or seeking help, and prevent bystanders from realising that a child may be at risk or from raising concerns. We believe the Australian Government should oversee the development and implementation of a national strategy to prevent child sexual abuse (Recommendation 6.1). This strategy should apply a public health approach to the issue. Our recommended national strategy encompasses a number of complementary initiatives that could contribute to change in communities (Recommendation 6.2), including: • social marketing campaigns for all communities • prevention education through early childhood centres, schools and other institutional settings for children and parents • online safety education for children and young people, and their parents • prevention education for tertiary students intending to work in child-related occupations • help-seeking services for potential perpetrators • information and help-seeking services for bystanders (including family members and other community members) who are concerned that an adult they know may perpetrate child sexual abuse or that a child may be at risk of displaying harmful sexual behaviours. Child Safe Standards We have identified 10 Child Safe Standards that are essential for a child safe institution (Recommendation 6.5). These standards can guide institutions by setting best practice to drive cultural change and guide performance. These 10 Child Safe Standards are: • Standard 1: Child safety is embedded in institutional leadership, governance and culture • Standard 2: Children participate in decisions affecting them and are taken seriously • Standard 3: Families and communities are informed and involved • Standard 4: Equity is upheld and diverse needs are taken into account • Standard 5: People working with children are suitable and supported Royal Commission into Institutional Responses to Child Sexual Abuse 25 • Standard 6: Processes to respond to complaints of child sexual abuse are child focused • Standard 7: Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training • Standard 8: Physical and online environments minimise the opportunity for abuse to occur • Standard 9: Implementation of the Child Safe Standards is continuously reviewed and improved • Standard 10: Policies and procedures document how the institution is child safe. We have also outlined the core components of each Child Safe Standard to guide institutions in implementing them (Recommendation 6.6). A national investment in child safety Overwhelming support has been expressed for a national approach to child safe institutions. The benefits of a national approach are many. Only national leadership, coordination and continuous improvement can drive the effective implementation of interventions to better protect children, and maximise collaboration and the efficient use of resources across jurisdictions. Our Child Safe Standards should be the foundation of a nationally consistent approach to children’s safety in institutions. The standards should be endorsed by the Council of Australian Governments (COAG) (Recommendation 6.7). All institutions should strive to be child safe. The national Child Safe Standards should be mandatory for institutions that engage in child-related work and should be embedded in legislation (Recommendations 6.8, 6.9 and 6.13). An independent oversight body in each state and territory should be responsible for monitoring and enforcing the Child Safe Standards (Recommendations 6.10 and 6.11). Governments could enhance the roles of existing children’s commissioners or guardians for this purpose. The oversight body should work proactively with institutions to support their ability to comply with the Child Safe Standards. This means supporting and building their capacity to understand how they can and why they should be child safe. Given the large number of institutions that engage in child-related work, the oversight body should work closely with sector peak bodies, other government departments, sector champions and leaders, and educational institutions. These partnerships should promote the Child Safe Standards and build the capacity of institutions to implement them. 26 Final Report: Preface and executive summary We believe government and institutional investment to prevent institutional child sexual abuse is justified. Child sexual abuse often has lifelong repercussions and can have significant social and economic consequences for victims and survivors, their families, friends and the community. Significant social and economic costs of institutional child sexual abuse include costs related to healthcare, lost earnings and tax revenue, increased need for welfare and child protection, the criminal justice system, and crime. A national approach would also facilitate the integration of child safe initiatives with other national strategies aimed at protecting children, including the National Plan to Reduce Violence against Women and their Children 2010–2022 and the National Disability Strategy 2010–2020. A National Framework for Child Safety The Australian Government should develop a National Framework for Child Safety to supersede the existing National Framework for Protecting Australia’s Children, which expires in 2020 (see Recommendation 6.15). The National Framework for Child Safety should commit governments to implementing long-term child safety initiatives and hold them to account. It should be endorsed and governed by COAG. The new framework should specifically include initiatives to address institutional child sexual abuse, as well as broader child safety issues, and include links to other related policy frameworks. The Australian Government should commit adequate long-term funding to initiatives in the National Framework for Child Safety. A National Office for Child Safety The Australian Government should establish a National Office for Child Safety, in the Department of the Prime Minister and Cabinet, to provide a response to implementing the Child Safe Standards nationally, and to develop and lead the proposed National Framework for Child Safety (Recommendations 6.16 and 6.17). The Australian Government should transition the National Office for Child Safety into an Australian Government statutory body (given the national significance and importance of the issue of child safety) within 18 months of this Final Report being tabled in the Australian Parliament. Establishment by legislation would give the office longevity, accountability, appropriate governance arrangements, and sufficient powers and resources to perform its functions. An Australian Government minister should be given clear portfolio responsibility for national leadership of children’s policy issues, including child safety (Recommendation 6.18). Appointment of a minister would cement child safety as a national priority. The minister should be responsible for the implementation and effectiveness of the National Framework for Child Safety and its associated initiatives. Royal Commission into Institutional Responses to Child Sexual Abuse 27 Keeping children and young people safe online Ensuring children are safe online is a growing area of concern in communities and institutions, as technologies and online behaviours rapidly evolve. Emerging risks to children include online grooming, child sexual exploitation, including video and live-streaming of abuse, and imagebased abuse, where sexual or intimate images are shared non-consensually by peers or others. Addressing emerging online risks is critical to creating child safe environments in institutions. A balanced approach is needed that acknowledges the positive role played by online technologies in young people’s lives. Key opportunities to strengthen children’s safety online and improve responses to online child sexual abuse should be led by and build on the existing work of the Office of the eSafety Commissioner. These include: • a nationally consistent approach to online safety education embedded in school curricula, staged appropriately from foundation year to Year 12. Vulnerable children who may not access formal school education programs should be engaged through targeted responses (Recommendation 6.19) • national online safety media campaigns and education aimed at parents and other community members to better support children’s safety online (Recommendation 6.20) • pre-service education and in-service staff training should be provided to support childrelated institutions in creating safe online environments (Recommendation 6.21) • an online safety framework and resources to support schools in creating child safe online environments, which includes strengthening institutional policies and procedures, and implementing codes of conduct (Recommendation 6.22) • centralised mechanisms within state and territory departments of education to support schools in managing responses when online incidents occur and ensuring the appropriate level of escalation of issues to relevant agencies (Recommendation 6.23) • building national capacity and collaboration to deal with the complexities of the evolving online environment, and supporting frontline law enforcement officers (Recommendation 6.24). Complaints – how should institutions respond? Institutional child sexual abuse has been widely under-reported to government authorities. Under-reporting has happened both where institutions and adults associated with them were legally obliged to report, and where they were not. Under-reporting can have profound and negative consequences. 28 Final Report: Preface and executive summary There are four key problems. The first is that state and territory governments have taken different approaches to developing the three main obligatory reporting models operating in Australia – mandatory reporting to child protection authorities, failure to report offences (to police), and reportable conduct schemes. In the absence of legal obligations, many institutions and their staff and volunteers did not report abuse outside the institution. The second problem is that barriers exist for those who want to report child sexual abuse. The third is that the training, education and guidance that exist about reporting obligations – what to report and how to make a report – are inadequate. The fourth is that gaps exist in the legislative protections available to reporters. We are satisfied that institutions, their staff and volunteers should be legally obliged to report institutional child sexual abuse to an external authority under at least one obligatory reporting model. For obligatory reporting to work effectively, obligations should be consistent across jurisdictions and the individuals who are obliged to report must be adequately protected (Recommendations 7.5 and 7.6). State and territory governments should amend laws concerning mandatory reporting to child protection authorities (Recommendation 7.3) so that at a minimum the following groups of individuals are included as mandatory reporters (in addition to the four occupations already designated in each jurisdiction, namely doctors, nurses, teachers and the police): • out-of-home care workers (excluding foster and kinship/relative carers) • juvenile justice workers • early childhood workers • registered psychologists and school counsellors • people in religious ministry. This would mean that more individuals who work closely with children would be both obliged to report and protected in making a report to child protection. We also recommend that laws concerning mandatory reporting to child protection authorities do not exempt people in religious ministry from being required to report knowledge or suspicions formed in whole or in part on the basis of information disclosed in or in connection with a religious confession (Recommendation 7.4). Extensions to mandatory reporter groups should be part of a reinvigorated broader initiative towards consistency in mandatory reporting laws. Royal Commission into Institutional Responses to Child Sexual Abuse 29 Handling complaints – many institutions failed There are many common problems with institutions’ responses to complaints of child sexual abuse. Some institutions have not developed or implemented clear and accessible complaint handling policies and procedures. Our case studies revealed numerous instances where institutions ignored or minimised complaints, adopted poor investigation standards, and did not assess and manage risks to the safety of children in their care. The mishandling of complaints has meant that some allegations of child sexual abuse were not properly investigated and children were not adequately protected. Institutions that provide services to or engage with children are diverse and vary in almost every characteristic – size, resources, workforce, location, regulatory context and the degree of risk they pose to children. This means that not all institutions can adopt the same complaint handling policies and procedures. Each needs to develop policies and procedures that reflect its own context. Complaint handling policies and procedures also differ according to the laws that apply in each jurisdiction in areas such as reporting obligations, employment law, privacy and victims’ rights. Institutions should have clear, accessible and child focused complaint handling policies and procedures that set out how they should respond to complaints of child sexual abuse (Recommendation 7.7). The complaint handling policies and procedures should cover: • making a complaint • responding to a complaint • investigating a complaint • providing support and assistance • achieving systemic improvements following a complaint. Institutions that deal with children should also have a clear code of conduct (Recommendation 7.8) that: 30 • outlines behaviours towards children that the institution considers unacceptable • includes a specific requirement to report any concerns, breaches or suspected breaches of the code to a person responsible for handling complaints in the institution or to an external authority when required by law or the institution’s complaint handling policy • outlines the protections available to individuals who make complaints or reports in good faith. Final Report: Preface and executive summary Poor records cause problems Inadequate records and recordkeeping have contributed to failures in identifying and responding to risks and incidents of child sexual abuse and have exacerbated distress and trauma for many survivors. Obstructive and unresponsive processes for accessing records have created further difficulties for survivors seeking information about their lives while in the care of institutions. Problems with records and recordkeeping practices are not confined to the past. While there has been recent reform to legislation, policy and practice that has improved records and recordkeeping practices, further change is needed. Institutions must dedicate time and resources to the creation and management of good records. Staff should be trained in the importance of records to institutional accountability, to the promotion of child safety and to the individuals whose lives are documented in them. All institutions that engage in child-related work should implement the following five high-level principles for records and recordkeeping, to a level that is responsive to the institution’s risks (Recommendation 8.4): 1. Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture. 2. Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse. 3. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately. 4. Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy. 5. Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent. Survivors have expressed particular concern about problems in obtaining access to records about themselves. In accordance with our recommended records and recordkeeping Principle 5, individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless it is contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted. Royal Commission into Institutional Responses to Child Sexual Abuse 31 Sharing information about possible perpetrators Sharing information about possible perpetrators is important to protect children. Information sharing between institutions – and between those institutions and relevant professionals – is necessary to identify, prevent and respond to incidents and risks of child sexual abuse. A failure to share information may allow perpetrators to continue in an institution or to move between institutions and jurisdictions. While all jurisdictions have some form of legislative or administrative arrangements to enable information sharing to protect children, these arrangements are limited in a number of ways, especially with respect to information exchanged across state and territory borders. There should be nationally consistent legislative and administrative information exchange arrangements in each jurisdiction (Recommendation 8.6). These arrangements should: • provide for prescribed bodies to share information related to children’s safety and wellbeing, including information relevant to child sexual abuse • establish an information exchange scheme to operate in and across Australian jurisdictions. Information sharing arrangements and practices in the schools and out-of-home care sectors could be strengthened to assist institutions to better identify, prevent and respond to incidents and risks of child sexual abuse. We recommend reforms, including in relation to sharing information about teachers and students (Recommendations 8.9 to 8.16) and the operation of carers registers (Recommendations 8.17 to 8.23), which would complement and be supported by our recommended information exchange scheme. Teacher registers and carers registers could also operate to enhance information sharing by collecting information relevant to child sexual abuse, and making it available to be shared, under our recommended information exchange scheme. 32 Final Report: Preface and executive summary Support services for victims and survivors Our work has made us aware of the needs of victims and survivors of child sexual abuse in both institutional and non-institutional settings. Improvements in responses to survivors of institutional child sexual abuse are likely to have benefits for all survivors. The trauma of institutional child sexual abuse can have profound, long-lasting and cumulative impacts on victims and survivors. Many survivors face a complex set of challenges throughout their lives. At various times, depending on the circumstances, victims and survivors may seek support from a range of mainstream and specialist services to help manage the detrimental impacts of abuse on their mental health. They may also need support for legal, education, housing, health, employment and financial issues, and for assistance with reporting abuse. The services used by victims and survivors span several sectors and it can be difficult for victims and survivors to navigate between them to find the support they need. The need for support often extends to secondary victims, such as family members, carers, friends and others in the institution where the abuse occurred. Victims and survivors face numerous barriers when seeking assistance from services. These include: stigmatising attitudes from professionals; unaffordable costs of services; and gaps in the availability of services, especially for some groups including children, men, the elderly and those transitioning out of prison. The lack of an integrated system makes it hard for people to find their way to relevant services and access those services. Survivors’ needs can change over time. The type of advocacy and support and therapeutic treatment a child, young person, adult or older person who has experienced childhood sexual abuse may need and find helpful can vary, depending on the person’s life stage. Currently, service systems across Australia do not have the capacity to meet victims’ and survivors’ needs. Inadequacies are most apparent when a victim or survivor is experiencing multiple and complex impacts from the trauma of child sexual abuse, particularly if they are deemed as not fitting within the remit of a single service. An individual will often be in multiple systems, moving in and out of services over many years. Redress and civil litigation Our Redress and civil litigation report recommended that the Australian Government establish a national redress scheme for survivors of child sexual abuse in institutions. In response, the Australian Government has announced a national redress scheme that will include psychological counselling as an element of redress.8 States and territories and institutions would be able to opt in to the scheme on the basis that they fund the cost of eligible redress claims made against them. Royal Commission into Institutional Responses to Child Sexual Abuse 33 The Australian Government has also announced that:9 • there will be a dedicated telephone helpline and website to provide information to survivors and their families about the redress scheme • survivors will be connected with legal and community support services that are currently provided through the Royal Commission and which will continue to be funded to support the redress scheme. On 26 October 2017, legislation to establish the Commonwealth Redress Scheme was introduced into federal Parliament in the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bill 2017 (Cth). A responsive service system We have made recommendations to ensure that service systems: • have the necessary components to respond adequately to victims’ and survivors’ support needs • understand the different ways child sexual abuse and institutional responses to abuse and disclosure can affect an individual, their families and communities, and the way a person’s experience of trauma can influence their service needs • provide a holistic response to victims and survivors as part of a cohesive systems approach • assist services and staff to sustainably work with victims and survivors in a safe, efficient and effective manner • are underpinned by the principles of trauma-informed practice and an understanding of institutional child sexual abuse; and by the principles of collaboration, availability, accessibility, acceptability and high quality. To meet the needs of children and adults who experienced child sexual abuse in institutions, the service system should include: • 34 a dedicated system of community-based support services for victims and survivors. This system should provide advocacy and support, including counselling, case management and brokerage assistance to coordinate and link to other services; it should facilitate peer-led support; and it should include Aboriginal and Torres Strait Islander healing approaches and disability-specific services Final Report: Preface and executive summary • a national service to assist victims and survivors to understand legal options and to navigate the legal system • a national telephone helpline and website that are central, visible points through which victims, survivors, professionals and the broader community can get information and assistance to navigate the service system • enhanced capacity of sexual assault services to provide specialist advocacy and support and therapeutic treatment for victims and survivors, and address service gaps • mainstream services capable of responding effectively to survivors with complex trauma. A national centre is required We know that to have the best opportunity to heal, victims and survivors must feel safe to disclose and receive support that is non-stigmatising, appropriate to their needs, and effective. Practitioners should have access to the best available evidence and programs should be evaluated to continuously drive improvement. During the Royal Commission, we gathered knowledge and contributed new evidence to support best practice. However, gaps in research on the experiences of and outcomes for survivors of institutional child sexual abuse still exist. Evidence as to the effectiveness of therapeutic treatment is also limited. In particular, research to better understand therapeutic treatment approaches for a range of specific groups is needed. Currently, the coordination and translation of knowledge about trauma-informed approaches into practice is ad hoc, impacting workforce skills and exacerbating shortages in expertise. While a number of organisations currently advocate for survivors and support awareness raising in related areas of trauma and child maltreatment, there is no national organisational focus specifically on child sexual abuse. In order to sustain the current momentum for change, ongoing national leadership is necessary to reduce stigma, promote help-seeking and support good practice. To this end, we recommend the creation of a national centre for children and adults who experienced sexual abuse in childhood (Recommendation 9.9) to provide national leadership to: • raise awareness, reduce stigma and foster help-seeking behaviours • translate knowledge about institutional child sexual abuse and effective responses into policy and practice • promote research and evaluation to address gaps in knowledge and develop better service models. Royal Commission into Institutional Responses to Child Sexual Abuse 35 Children with harmful sexual behaviours Children’s harmful sexual behaviours should be identified early. If children are provided with an appropriate assessment and, if required, a therapeutic response tailored to their particular needs, background and situation, then the behaviours are more likely to cease and less likely to escalate. In turn, children are less likely to require a criminal justice intervention. Primary prevention initiatives are directed to the whole community and aim to educate both adults and children to help prevent children’s harmful sexual behaviours. There has been a lack of understanding of children’s harmful sexual behaviours in the general community and within institutions. Harmful sexual behaviours are often not recognised and adults in institutions can struggle to know how to react when these behaviours become apparent. Consequently, we believe that primary prevention should: • outline the difference between developmentally appropriate and harmful sexual behaviours in children in a non-stigmatising way • give children clear guidance on what sexual behaviours are acceptable, what peer and adult behaviours are wrong, and where they can seek help if they feel unsafe • take into account gender, age, cultural context and disability. Secondary prevention focuses on early intervention to prevent children’s problematic sexual behaviour from escalating to the point where they might harm other children. Secondary intervention should be directed to children who are at higher risk of displaying harmful sexual behaviours and towards institutions with higher situational risk. We acknowledge that the presence of risk factors does not mean a child will display harmful sexual behaviours; however, they can serve as a guide for the allocation of resources. Risk factors include: adverse childhood experiences; intellectual impairment and learning difficulties; placement in out-of-home care; and institutions with hierarchical and hyper-masculine cultures (such as some sporting clubs, male boarding schools or defence force settings). Institutions should have clear policies on how to support and manage children exhibiting harmful sexual behaviours. An institutional response to an incident should include: 36 • monitoring the wellbeing of all children involved – the victim, the child who caused the harm, and any witnesses or other children who may have been impacted • communicating with the children involved, their parents or caregivers, and agencies where relevant, including police and child protection • documenting events and sharing relevant information with other agencies where necessary and appropriate. Final Report: Preface and executive summary Multi-agency collaboration should be at the heart of a public health approach to children with harmful sexual behaviours. People working in child protection, police, health, therapeutic treatment services, juvenile justice and institutions where a child has exhibited harmful sexual behaviours will have expertise and particular insight that can inform interventions for the child. Information sharing is key to achieving the best possible outcomes. Tertiary interventions include child protection and criminal justice responses as well as therapeutic assessment and interventions. Referring a child with harmful sexual behaviours for specialist assessment is necessary to determine the most appropriate therapeutic intervention for the child. Interventions to address the behaviours cannot take a ‘one-size-fits-all’ approach. Each child who exhibits harmful sexual behaviours does so within the context of their current living situation and against the background of their unique upbringing and life circumstances – all of which may have contributed to the development of those behaviours. In institutional settings, the institution is part of this context. Therapeutic interventions should be tailored to the child’s behaviours as well as their particular situation. Our Final Report outlines best practice principles for responding to children’s harmful sexual behaviours, including: • There should be accountability and responsibility for the harmful sexual behaviours. Therapeutic interventions should assist the child with the harmful sexual behaviours to acknowledge and take responsibility for their behaviours. This is especially important as in most cases another child will have been a victim of the behaviours. • There should be a focus on behaviour change. The aim should be to guide the child towards understanding appropriate and safe ways to behave, using education combined with an appreciation of the child’s entire circumstances at home and at school, so that both helpful and unhelpful aspects of their behaviour can be addressed. • Developmentally and cognitively appropriate interventions should be used. They should be tailored to the child’s age and developmental stage and accommodate learning and language difficulties, developmental delays, cognitive impairment and needs as a result of other disability. • The care provided should be trauma-informed. A trauma-informed approach recognises that many children with harmful sexual behaviours have trauma in their background and therefore have complex needs that require a holistic response. • Therapeutic services and interventions should be culturally safe. Aboriginal and Torres Strait Islander children and their families may require culturally tailored approaches. Practitioners should consult with cultural experts to ensure interventions are effective. • Therapeutic interventions should be accessible to all children with harmful sexual behaviours. Royal Commission into Institutional Responses to Child Sexual Abuse 37 Residential institutions – major problems What really gets me is how respected the staff … were in the community and how they used us for fund raising and to promote themselves as doing good works, when all the time we were treated as slaves, beaten and abused, used for their perverted desires. These were terrible years. No love or kindness, no safety or warmth. Always hungry and always frightened.10 Many survivors who came to private sessions told us they had experienced child sexual abuse in residential institutions prior to 1990. These institutions have mostly ceased to exist. As examined in Volume 11, Historical residential institutions, they included missions, orphanages, children’s homes, reformatories, reception centres, family group homes, training centres, mental health and disability institutions and hostels. Of all survivors who attended private sessions, more than one-third (35.9 per cent) told us they were sexually abused in residential institutions before 1990. The majority (57.8 per cent) were aged between 40 and 60 years of age when they attended their private session, and almost half (45.1 per cent) of those who told us about abuse in residential institutions prior to 1990 said they were first abused between 1950 and 1969. A high proportion of these survivors were male (61.8 per cent). Over one in five (22.2 per cent) were Aboriginal and Torres Strait Islander and of these, 53.9 per cent were male. Almost three-quarters of survivors of abuse in historical residential institutions (72.9 per cent) described experiencing other forms of abuse, including being beaten, flogged, caned, belted, thrown about and knocked unconscious. Many of these institutions operated without proper oversight and with a prevailing culture in which children were not listened to. Children were isolated from protective adults. Social attitudes to children increased their vulnerability to sexual and other forms of abuse. Younger children were placed with older children, and children with welfare needs housed with children from the justice system. Children with disability or mental health concerns were often placed in adult institutions. Until the 1960s, Australia often relied on large residential institutions to accommodate Aboriginal and Torres Strait Islander children forcibly removed from their families, child migrants, wards of the state, orphans, children with disability and others. The latter half of the 20th century saw significant changes to the systems and models of residential care in Australia, although many of these children remained in institutions. Multiple previous inquiries – including those focusing on the experiences of the Stolen Generations, Former Child Migrants and Forgotten Australians – have outlined the harsh conditions for children and the abuse of power by authorities in residential institutions. 38 Final Report: Preface and executive summary Research has concluded that while all children in institutions are vulnerable to child sexual abuse, Aboriginal and Torres Strait Islander children experience increased vulnerability due to a range of historical and contemporary factors. These include the impacts of past policies and practices as well as ongoing systemic racism, which reduce the protective factors in these children’s lives and place them more often than other children in high-risk institutions. While the precise number of child migrants sent to Australia during the 20th century is unknown, approximately 3,000 to 3,500 children were sent under approved schemes during the post-World War II period and a similar number before the war. In 2001, Lost Innocents: Righting the record – Report on child migration detailed the widespread abuse of child migrants in Australia and noted the complete disregard for the needs, the safety and wellbeing of many child migrants. It is estimated that over half a million children experienced institutional or other out-of-home ‘care’ in Australia during the 20th century. In 2004, the Forgotten Australians report outlined what the Senate Community Affairs References Committee had heard through hundreds of submissions from people who spent time in such care: Their stories outlined a litany of emotional, physical and sexual abuse, and often criminal physical and sexual assault. Their stories also told of neglect, humiliation and deprivation of food, education and healthcare.11 Out-of-home care And what makes that whole situation worse is that [the child protection department], who is an organisation to help children who, you know, are being abused, they knew what type of person he was, they knew that there was previous allegations against him, and they allowed me to go and live with somebody who was having regular contact with him. And not only me, my brothers and sisters as well.12 Each state and territory in Australia has an out-of-home care system where children who are considered unable to live safely with their families or in informal care arrangements are placed with alternative carers on a short- or long-term basis. Australia’s systems of out-of-home care have changed enormously in recent decades. Gone are the children’s homes, mission dormitories, large disability homes and other large institutions of the past. Today, there is greater emphasis on placing children in home-based settings, preferably with family or kin. Residential care is still used, but those facilities are expected to be somewhat domestic in scale and operation. Change is ongoing. In most jurisdictions, responsibility for out- Royal Commission into Institutional Responses to Child Sexual Abuse 39 of-home care services is being transferred from government to non-government organisations, including a small number of for-profit agencies in some jurisdictions. Despite reforms in every jurisdiction, there are weaknesses and systemic failures that continue to place children in care at risk of sexual abuse. Abuse by carers, family members, visitors and workers still occurs, and sexual exploitation, especially of children in residential care, is an emerging concern. Frequent placement changes, poor information sharing, gaps in training and supports, especially to kinship carers, still exist. Given the increasing number of children in care and the inherent vulnerability of children in care, such weaknesses need to be addressed. As at 30 June 2016, there were 46,448 children in statutory out-of-home care throughout Australia – up from 25,454 children in 2006 and 13,979 in 1996. Currently, more than eight out of every 1,000 children in Australia are not living at home with their parents. Although there are variations between jurisdictions, most of these children are in kinship or relative care (48.6 per cent) and foster care (38.7 per cent). Other types of care include residential care, independent living, family group homes and other home-based care, voluntary care and uncategorised placements, such as boarding schools, refuges and hotels/motels. The numbers of Aboriginal and Torres Strait Islander children in out-of-home care are disproportionately high in all jurisdictions. Nationally, the rate of Aboriginal and Torres Strait Islander children in out-of-home care is almost 10 times that of non-Indigenous children. Just 5 per cent of Australian children aged 0 to 14 years are Aboriginal or Torres Strait Islander, yet they make up 36 per cent of all children in out-of-home care. Although data is incomplete, children with disability are also significantly over-represented in out-of-home care. One witness estimated that at least 24 per cent and up to 30 per cent of children in out-of-home care have some form of disability. Similarly, surveys in Victoria and Queensland suggest that between 20 and 26 per cent of children in residential care have disability. Intellectual, learning and conduct disorders were the most prevalent forms of impairment reported. Children from culturally and linguistically diverse backgrounds are estimated to constitute 13 to 15 per cent of children in out-of-home care, a substantial proportion of whom have refugee experiences. Although no jurisdictions collect relevant data, children of care-leavers also appear to be over-represented, with research suggesting that the risks of intergenerational involvement in out-of-home care are exacerbated by social and economic disadvantage. 40 Final Report: Preface and executive summary Child sexual abuse in out-of-home care As at 31 May 2017, of the 257 survivors who told us in private sessions they had been sexually abused in contemporary (post-1990) out-of-home care, two-thirds (170 survivors or 66.1 per cent) said they were abused in home-based care (relative, kinship and foster care), and 96 survivors (37.4 per cent) said they were abused in a residential care setting. Some told us they were abused in both types of care placements. Some research suggests that boys are more likely than girls to be victimised by non-family perpetrators (extra-familial) and by multiple male abusers, while girls are more likely than boys to be sexually abused by family members (intra-familial). Information provided to us by survivors in private sessions is reasonably consistent with this research literature. More female survivors (94 survivors or 81.7 per cent of those abused in contemporary out-of-home care) than male survivors (76 survivors or 53.5 per cent) told us about being abused in home-based care. Many female survivors also described abuse by multiple perpetrators. Victims of child sexual abuse in contemporary out-of-home care may have previously experienced severe abuse and neglect leading to their removal from their families of origin. The impact of compounding experiences of abuse may result in complex trauma and cumulative harm. Victims can experience feelings of betrayal and loss of trust when abused. Sexual abuse can lead to placement instability, as children may be removed from a placement as a result of disclosure or because carers are unable to manage the ways in which children express complex trauma. Institutional responses In recent decades, there has been improved screening and authorisation of organisations and carers, and stronger regulation and oversight of the out-of-home care sector. However, some mistakes of the past continue to undermine the safety and wellbeing of children in care, including: • child protection systems are not sufficiently focused on providing families in crisis with supports when needed, resulting in too many children continuing to enter out-of-home care • Aboriginal and Torres Strait Islander children, children with disability and children from poor and disadvantaged families all remain over-represented • deficiencies in the care and support provided to children in care are often compounded by the failure to adequately support care-leavers as they transition to independent living. Royal Commission into Institutional Responses to Child Sexual Abuse 41 Creating child safe out-of-home care There is an urgent need to improve the use of information about the extent of child sexual abuse in out-of-home care. Currently only some child abuse is notified to authorities and subsequent reporting about those notifications is limited. Despite recent improvements introduced by the Child Protection National Minimum Data Set, there are still no reliable estimates of the number of children in out-of-home care who have been sexually abused, the characteristics of those children and of children who are at greater risk, details of who perpetrated the abuse, when and where the abuse occurred, and the adequacy of responses (Recommendations 12.1 to 12.3). In our view, mandatory accreditation for all out-of-home care service providers – both government and non-government – by an independent agency would help protect children in care from sexual abuse by promoting improved standards, transparency and public confidence in the quality of out-of-home care services (Recommendations 12.4 and 12.5). Carer authorisation requirements differ between states and territories. In each jurisdiction, all types of carers are required to undergo basic probity checks – usually a National Police Check, Working With Children Check and referee checks. Some jurisdictions conduct more comprehensive screening. Only some require residential care workers to be authorised. Our recommendation for nationally consistent carer authorisation assessments highlights the need for all types of carers to be assessed, and for assessments of carer suitability to – at a minimum – include community services checks, documented risk management plans to address any risks identified through community services checks, and at least annual review of those risk management plans (Recommendation 12.6). Children in out-of-home care need particular support to assist them in identifying abuse and how they might safely disclose what is happening to them (Recommendation 12.9). We know that complaint processes are not always child-friendly and that the notion of making a formal complaint may be foreign to many children. Additional barriers may include difficulties ensuring confidentiality – for example, in small or remote communities, or when the child is in a kinship/ relative care placement and the complaint is about a family member. We recommend that state and territory governments, in close collaboration with out-of-home care providers and peak bodies, develop resources to assist out-of-home care providers to implement appropriate mechanisms for children in out-of-home care to communicate, either verbally or through behaviour, their views, concerns and complaints (Recommendation 12.10). We recommend that training for foster and kinship/relative carers, residential care staff and child protection workers includes an understanding of trauma and abuse, its impact on children and the principles of trauma-informed care to assist them to meet the needs of children in out-of-home care, including children with harmful sexual behaviours (Recommendation 12.11). 42 Final Report: Preface and executive summary Children in contemporary out-of-home care, particularly in residential care settings, may be at acute risk of sexual exploitation – that is, being manipulated or coerced to participate in sexual activity by an adult outside the placement. We recommend the development of coordinated and multi-disciplinary strategies to identify and disrupt such sexual exploitation (Recommendations 12.14 and 12.15). There is insufficient recognition in the child protection system in all jurisdictions of the essential importance of Aboriginal and Torres Strait Islander culture to keeping children safe, despite legislative and policy requirements to do so. The fundamental goal of the Aboriginal and Torres Strait Islander Child Placement Principle is to enhance and preserve Aboriginal and Torres Strait Islander children’s connection to family and community and their sense of identity and culture. We recommend that priority be given to the development and implementation of plans to fully implement the placement principle (Recommendation 12.20). We also recognise the need to develop specialised supports for children with disability in outof-home care (Recommendation 12.21). Care-leavers, especially those who have been sexually abused during their time in care, need support that is readily available and designed to meet their needs as they transition to independence (Recommendation 12.22). Religious institutions After each time I was sexually abused, I had to go to confession to him and confess ‘my’ sin of impurity. He would say, ‘Are you sorry for your sin, my child?’ and I would reply, ‘Yes, Father’. He then said ‘Ask Almighty God and his blessed mother to help you sin no more. For your penance say three Hail Marys. Now make a perfect act of contrition. Go and sin no more’.13 More than 4,000 survivors in private sessions told us they were sexually abused as children in religious institutions in Australia. The abuse occurred in churches, presbyteries and rectories, confessionals, religious schools, orphanages and missions, and various other settings. We heard about child sexual abuse occurring in 1,691 different religious institutions. The sexual abuse took many forms. It was often accompanied by physical or emotional abuse. Most victims were aged between 10 and 14 years when the abuse first started. The perpetrators we heard about included priests, religious brothers and sisters, ministers, church elders, teachers in religious schools, workers in residential institutions, volunteers, youth group leaders and others. We conducted 30 case studies on religious institutions. They revealed that many religious leaders knew about allegations of child sexual abuse yet failed to take effective action. Some ignored allegations and did not respond at all. Some treated alleged perpetrators leniently and Royal Commission into Institutional Responses to Child Sexual Abuse 43 failed to address the obvious risks they posed to children. Some concealed abuse and shielded perpetrators from accountability. Institutional reputations and individual perpetrators were prioritised over victims and their families. Religious leaders and institutions across Australia have acknowledged that children suffered sexual abuse while in their care. Many have also accepted that their responses to this abuse were inadequate. These failures are not confined to religious institutions. However, the failures of religious institutions are particularly troubling because these institutions have played, and continue to play, an integral and unique role in many children’s lives. They have been key providers of education, health and social welfare services to children for many years. They have been among the most respected institutions in our society. The perpetrators of child sexual abuse in religious institutions were, in many cases, people that children and parents trusted the most and suspected the least. It would be a mistake to regard child sexual abuse in religious institutions as being historical; as something we no longer need to be concerned about. While much of the abuse we heard about did take place before 1990, more than 200 survivors told us they had experienced child sexual abuse in a religious institution since 1990. Long delays in victims disclosing abuse mean that an accurate contemporary understanding of the problem is not possible. However, it would also be wrong to say that nothing has changed. In some religious institutions there has been progress over the last two decades. Some of the religious institutions examined in our case studies told us about their child protection reforms. Others remained reluctant to accept the need for significant internal changes. We have developed a comprehensive set of recommendations aimed at making religious institutions safer for children. Many of them apply to all religious institutions in Australia. Some are specific to particular religious institutions, and address unique factors relating to their structure, governance or internal culture. While positive reforms are underway in some religious institutions, there is still much progress to be made before the community can be confident that all religious institutions in Australia are as safe as possible for children. Key information sources about religious institutions Private sessions As at 31 May 2017 we had heard from 6,875 survivors in private sessions, of whom 4,029 (58.6 per cent) told us about child sexual abuse in religious institutions. 44 Final Report: Preface and executive summary The largest proportion of these survivors spoke to us about child sexual abuse in Catholic institutions. We heard from 2,489 survivors about child sexual abuse in Catholic institutions, representing almost two-thirds (61.8 per cent) of survivors who told us about child sexual abuse in religious institutions and more than one-third (36.2 per cent) of all survivors we heard from in private sessions. In private sessions we heard about child sexual abuse occurring in 964 different Catholic institutions. We also frequently heard in private sessions about child sexual abuse in Anglican institutions (594 survivors or 14.7 per cent of survivors who told us about abuse in religious institutions, involving 244 different Anglican institutions) and in Salvation Army institutions (294 survivors or 7.3 per cent of survivors who told us about abuse in religious institutions, involving 64 different Salvation Army institutions). We heard from smaller numbers of survivors of child sexual abuse in institutions managed by or affiliated with a number of other religious organisations, as reflected in Table 2. Table 2 – Number of survivors in private sessions by religious organisation, as a proportion of all private session attendees, as a proportion of private session attendees who told us about abuse in religious institutions, and number of religious institutions, from private sessions May 2013 – May 2017 Religious organisation Number of survivors who attended a private session Survivors of abuse, as a proportion of all private session attendees (%) Survivors of abuse, Number of as a proportion of religious all private session institutions attendees who told us about abuse in religious institutions (%) Catholic 2,489 36.2 61.8 964 Anglican 594 8.6 14.7 244 Salvation Army 294 4.3 7.3 64 Protestanta 169 2.5 4.2 57 Presbyterian and Reformed 117 1.7 2.9 40 Uniting Church 97 1.4 2.4 50 Other Christianb 75 1.1 1.9 42 Jehovah’s Witnesses 70 1.0 1.7 57 Baptist 40 0.6 1.0 30 Royal Commission into Institutional Responses to Child Sexual Abuse 45 Religious organisation Number of survivors who attended a private session Survivors of abuse, as a proportion of all private session attendees (%) Survivors of abuse, Number of as a proportion of religious all private session institutions attendees who told us about abuse in religious institutions (%) Pentecostal 37 0.5 0.9 30 Brethren 33 0.5 0.8 12 Churches of Christ 29 0.4 0.7 21 Judaism 25 0.4 0.6 10 Seventh-day Adventist 25 0.4 0.6 21 Lutheran 22 0.3 0.5 12 Latter-day Saints, Church of Jesus Christ of LDS (Mormons) 7 0.1 0.2 6 Miscellaneous religionsc 7 0.1 0.2 4 Islam <5 <0.1 <0.2 <4 Baha’i <5 <0.1 <0.2 <4 Eastern Orthodox <5 <0.1 <0.2 <4 Hinduism <5 <0.1 <0.2 <4 Oriental Orthodox <5 <0.1 <0.2 <4 Unknown 20 0.3 0.5 18 a ‘Protestant’ includes institutions identified by survivors as Protestant without further information about denomination. b ‘Other Christian’ includes but is not limited to Unitarian, Religious Society of Friends (Quakers), Fundamentalist Evangelical, Christian Outreach and Christadelphians. These Christian groups are not individually coded in the third edition of the Australian Standard Classification of Religious Groups (2016). c ‘Miscellaneous religions’ includes but is not limited to Scientology, The Family and Satanism. These non-Christian groups are not individually coded in the third edition of the Australian Standard Classification of Religious Groups (2016). Note: The number of survivors in private sessions has not been provided with respect to religious organisations with fewer than five, as this could potentially lead to a survivor being identifiable. 46 Final Report: Preface and executive summary The majority of survivors who told us in private sessions about child sexual abuse in religious institutions were male. The average age of victims at the time of first abuse was 10.3 years. Most survivors told us about multiple incidents of abuse and many told us about abuse that continued for more than a year. Of the 4,029 survivors we heard from in private sessions about child sexual abuse in religious institutions, the majority (2,533 survivors or 62.9 per cent) provided information about the age of the person who sexually abused them. Of those, 2,164 survivors (85.4 per cent) told us about abuse by an adult perpetrator. Most of these survivors (2,063 survivors or 95.3 per cent) said they were abused by a male adult. Far fewer (139 survivors or 6.4 per cent) said they were abused by a female adult and 50 survivors (2.3 per cent) said they were abused by both a male adult and a female adult. The perpetrators we heard about in private sessions held various positions in religious institutions, but most held positions of leadership or authority. Some held more than one position, such as people in religious ministry who were also teachers. Some survivors told us about multiple perpetrators who held different positions. Of the 4,029 survivors we heard from in private sessions about child sexual abuse in religious institutions, most (3,879 survivors or 96.3 per cent) told us about the position held by a perpetrator. Of those, 2,053 survivors (52.9 per cent) told us about perpetrators who were people in religious ministry. We also frequently heard about perpetrators who were teachers (901 survivors or 23.2 per cent) or residential care workers (506 survivors or 13.0 per cent). Other perpetrators we heard about included housemasters, foster carers, volunteers and others. We heard about children experiencing sexual abuse in religious institutions in Australia from the late 1920s until well after the establishment of this Royal Commission. Of the survivors who told us in private sessions about child sexual abuse in religious institutions, 90.0 per cent told us about abuse occurring before 1990 and 5.8 per cent told us about abuse occurring from 1990 onwards. Some survivors did not discuss the date of abuse. Because of delayed disclosure, information gathered from private sessions is likely to under-represent the number of survivors of more recent abuse. Other key data sources We collected data from the Catholic, Anglican and Uniting churches in Australia about claims and complaints of child sexual abuse. Catholic Church authorities provided information about claims of child sexual abuse they received between 1 January 1980 and 28 February 2015 (the Catholic Church claims data). Of the 201 Catholic Church authorities surveyed, 92 authorities (46 per cent) reported having received one or more claims of child sexual abuse. Overall, 4,444 claimants alleged incidents of child sexual abuse in 4,756 reported claims to Catholic Church authorities. Royal Commission into Institutional Responses to Child Sexual Abuse 47 The Catholic Church claims data showed that the average age of claimants at the time of the first alleged incident of child sexual abuse was 11.4 years for all claimants, 11.6 years for male claimants and 10.5 years for female claimants. Of those who made a claim, 78 per cent were male and 22 per cent were female. The largest proportion of first alleged incidents of child sexual abuse occurred in the 1970s. The average duration of abuse was 2.4 years. There was an average delay of 33 years between the date of the first alleged incident of abuse and the date the claim was made. The Catholic Church claims data identified 1,880 known alleged perpetrators. Additionally, 530 alleged perpetrators whose identities were not known were the subject of claims of child sexual abuse. Overall, 90 per cent of alleged perpetrators were male and 10 per cent were female. Around two-thirds of alleged perpetrators identified in claims of child sexual abuse were either priests (30 per cent), religious brothers (32 per cent) or religious sisters (5 per cent). Just under one-third (29 per cent) were lay people. Anglican Church dioceses provided information about complaints of child sexual abuse they received between 1 January 1980 and 31 December 2015. Of the 23 Anglican Church dioceses surveyed, 22 reported having received one or more complaints of child sexual abuse. Overall, 1,085 complainants alleged incidents of child sexual abuse in 1,119 reported complaints to Anglican Church dioceses. The Anglican Church complaints data showed that the average age of complainants at the time of the first alleged incident of child sexual abuse was approximately 11 years for both male and female complainants. Of those who made a complaint, 75 per cent were male and 25 per cent were female. The largest proportion of first alleged incidents of child sexual abuse occurred in the 1970s. The average duration of abuse was 1.7 years. There was an average delay of 29 years between the date of the first alleged incident of abuse and the date the claim was made. The Anglican Church complaints data identified 569 known alleged perpetrators. Additionally, 133 alleged perpetrators whose identities were not known were the subject of complaints of child sexual abuse. Overall, 94 per cent of alleged perpetrators were male and 6 per cent were female. Of the alleged perpetrators identified in complaints of child sexual abuse, 50 per cent were lay people and 43 per cent were ordained clergy (the religious status in respect of the other 7 per cent was unknown). The Uniting Church in Australia provided data regarding allegations and claims of child sexual abuse received between 22 June 1977, when it was established, and 3 March 2017. The data showed that 430 allegations of child sexual abuse were made to the church’s six synods in Australia. Of these allegations, 102 resulted in claims of child sexual abuse where the claimant sought redress through a redress process or civil litigation. 48 Final Report: Preface and executive summary There are some limitations on the data sources available to us. They do not represent the total number of allegations of child sexual abuse relating to religious institutions in Australia and cannot be used to determine the incidence or prevalence of child sexual abuse in religious institutions. They represent only those survivors who have come forward, and may not accurately represent the demographic profile or experiences of those who have not come forward. They are also likely to under-represent victims of more recent abuse, as long delays in disclosing child sexual abuse are common. Case studies We held 30 case studies that examined responses to child sexual abuse in religious institutions. Fifteen case studies examined Catholic institutions, seven examined Anglican institutions and three examined institutions managed by The Salvation Army. In addition, our case studies examined institutions managed by or affiliated with each of the following: the Uniting Church, the Jehovah’s Witnesses, Australian Christian Churches (ACC) and affiliated Pentecostal churches, Yeshiva Bondi and Yeshivah Melbourne (religious institutions forming part of the ChabadLubavitch movement of Orthodox Judaism) and the Australian Indigenous Ministries (formerly the Aborigines Inland Mission, a non-government and interdenominational faith ministry). Our case studies focused on those religious institutions about which we received the most allegations of child sexual abuse, or in relation to which particular systemic issues arose. The limits on our time and resources meant that we did not hold case studies on religious institutions that were raised with us by a small number of people. Religious schools We heard that many children experienced sexual abuse in religious schools, including day schools and boarding schools. Of the 6,875 survivors who told us in private sessions about child sexual abuse in institutional contexts, 2,186 survivors (31.8 per cent) told us about abuse in schools. Of those, 1,570 survivors (71.8 per cent) told us about child sexual abuse in religious schools. The victims we heard about included children of both primary and secondary school age, and both boys and girls. Survivors told us about school cultures that permitted child sexual abuse and silenced victims. We heard that children were sexually abused in various locations on their school grounds or during school-related activities. Some survivors told us about being sexually abused by people in religious ministry in church premises located on or next to school grounds. Boarding schools were also a particularly risky environment in which perpetrators had ready access to children. Royal Commission into Institutional Responses to Child Sexual Abuse 49 We heard that children were sexually abused by a range of individuals in religious schools, including males and females of various ages and who held various positions. However, many of the perpetrators we were told about were adult males who were people in religious ministry. Many perpetrators were teachers, and some were housemasters or dormitory masters. In private sessions, we also heard from 112 survivors about sexual abuse by another child in a religious school, with almost one-third of these survivors describing abuse that occurred from 1990 onwards. Residential institutions managed by religious organisations We heard that many children experienced sexual abuse in residential institutions managed by religious organisations, including orphanages, children’s homes and missions. Of the 6,875 survivors we heard from in private sessions, 2,858 survivors (41.6 per cent) told us about abuse in out-of-home care settings. Of those, 1,419 survivors (49.7 per cent) told us about abuse in residential institutions managed by religious organisations before 1990. Around one in five of these survivors (20.8 per cent) identified as Aboriginal or Torres Strait Islander. The victims we heard about were boys and girls of various ages and from a range of backgrounds. They included orphans, state wards, child migrants, children with disability and Aboriginal and Torres Strait Islander children who were forcibly removed from their families. We heard that children were particularly vulnerable in residential institutions. Many of these institutions were located in remote places and children were often isolated, having little interaction with people outside the institution. Staff often had unfettered access to children. Survivors told us about experiencing child sexual abuse in various locations within residential institutions, commonly in shared dormitories or nearby staff bedrooms. We heard that, in addition to experiencing sexual abuse, children in these institutions often grew up in an environment of physical brutality, emotional abuse and extreme neglect. We heard in private sessions about different types of perpetrators in residential institutions managed by religious organisations, including people in religious ministry, staff who worked at the institutions, housemasters, teachers and others. Most survivors told us about male adult perpetrators, but we also heard about female adult perpetrators. We also heard in private sessions that many victims in residential institutions were sexually abused by other children. Of those who told us about child sexual abuse in residential institutions managed by religious organisations before 1990, and who told us about the age of the person who sexually abused them, 321 survivors (38.8 per cent) told us about abuse by another child. 50 Final Report: Preface and executive summary The Catholic Church claims data showed that nine of the 10 Catholic institutions identified as having the most claims of child sexual abuse were residential institutions. The majority of claims of child sexual abuse relating to residential institutions identified a religious brother as an alleged perpetrator (51 per cent). This was followed by priests (26 per cent), lay people (14 per cent) and religious sisters (7 per cent). Places of worship, religious activities and recreational activities Of the 4,029 survivors who told us in private sessions about child sexual abuse in religious institutions, 1,000 survivors (24.8 per cent) told us about abuse in places of worship or during religious activities. Sixty-six survivors (1.6 per cent) told us about abuse during recreational activities affiliated with religious organisations, such as church-run camps or youth groups. The victims we heard about included boys and girls of various ages and from different religious backgrounds. Each religious organisation has its own places of worship and religious rituals and activities, which often involve children. In private sessions and case studies we heard about children experiencing sexual abuse in places of worship or related locations such as a confessional, a priest’s residence or a ritual bathhouse; in seminaries and houses of religious formation; and during religious activities such as altar boy duties, Bible study or Sunday school. Most of the perpetrators we heard about in places of worship or during religious activities were adult males who were people in religious ministry. We frequently heard about the trust and respect shown by religious communities and families to people in religious ministry, and how this was a factor in perpetrators gaining access to, grooming and abusing children. Characteristics of child sexual abuse specific to religious institutions We heard about some aspects of institutional child sexual abuse that were specific to religious institutions. In devout religious families, parents often had such high regard for people in religious ministry that they naturally trusted them to supervise their children. People in religious ministry were often considered to be representatives of God. Many parents were unable to believe they could be capable of sexually abusing a child. In this environment, perpetrators who were people in religious ministry often had unfettered access to children. Children were often sexually abused by people in religious ministry after the perpetrator had groomed the child’s family members by becoming closely involved in their family life. We commonly heard about perpetrators who ingratiated themselves into the family and became regular visitors to the home. Sometimes perpetrators stepped into the role of ‘father figure’ or exploited particularly vulnerable families, such as those experiencing marriage breakdown or mourning a death. Royal Commission into Institutional Responses to Child Sexual Abuse 51 Survivors also told us that as children, they were threatened or blamed for the sexual abuse they experienced, often in ways that manipulated their religious beliefs – such as the threat of being sent to hell if they resisted sexual abuse or disclosed it. The use of threats and blame in the name of God had a powerful effect on children. We heard about priests misusing the practice of religious confession to facilitate child sexual abuse or to silence victims. Survivors told us about experiencing sexual abuse as children in the confessional at their church. We also heard that some children experienced sexual abuse that involved the use of religious rituals, symbols or language. Some survivors described such experiences as amounting to a type of ‘spiritual abuse’, which profoundly damaged their religious beliefs and trust in their religious organisation. Impacts of child sexual abuse in religious institutions The impacts of child sexual abuse in institutional contexts can be devastating. There can be distinctive impacts where the abuse is inflicted in a religious context. Some survivors told us they felt a sense of spiritual confusion or spiritual harm after being sexually abused as a child by a person in religious ministry. Many survivors said they lost their religious faith. We heard that children were raised to have the utmost respect for the religious organisation their family was a part of, and were often taught that people in religious ministry, such as priests, were God’s representatives on earth. Some perpetrators used this status to facilitate child sexual abuse. When a religious child was sexually abused by such a person, the impacts were often profound. Some children felt that they had been abused by God or that God must have willed the abuse to happen. The impacts of child sexual abuse in religious institutions have rippled out to affect victims’ parents, siblings, partners, children and, in some cases, entire communities. Some victims have not survived the abuse, having since taken their own lives. Some religious families were torn apart when children disclosed that they had been sexually abused by people in religious ministry, because parents were unable to believe that people in religious ministry could be capable of perpetrating such abuse. Some survivors told us that negative reactions from family members when they disclosed abuse led to alienation between them and their family members for years, in some cases a lifetime. We also heard that some survivors were not believed, or were ostracised by their religious community, after disclosing child sexual abuse. The cohesion of a religious community can be shattered when child sexual abuse – and poor institutional responses to that abuse – come to light. Communities can become divided, particularly when the abuse is revealed to be extensive or when institutions have attempted to conceal it. We heard about members of religious communities feeling as though they had been betrayed by religious leaders and institutions they had believed in, revered and entrusted their children to. 52 Final Report: Preface and executive summary We also heard that some members of religious orders or congregations felt betrayed and shamed by the crimes of their fellow members, and by the failure of their leaders to take decisive action against perpetrators and to respond appropriately to survivors of child sexual abuse. Common responses to child sexual abuse across religious institutions Our inquiry revealed numerous cases where leaders of religious institutions knew about allegations of child sexual abuse but failed to take effective action, often with catastrophic consequences for children. Our case studies demonstrated that it was a common practice of religious institutions to adopt ‘in-house’ responses when dealing with allegations of child sexual abuse. Sometimes they did not respond at all. Often, alleged perpetrators were treated with considerable leniency. Inhouse responses ensured that allegations remained secret, and shielded religious institutions from public scrutiny or accountability. Leaders of religious institutions often showed insufficient consideration for victims at the time they disclosed child sexual abuse. They frequently responded with disbelief or denial, or attempted to blame or discredit the victim. We also heard of instances where children who disclosed sexual abuse in religious institutions were punished or suffered further abuse. Leaders of religious institutions often minimised the sexual conduct that was reported to them and wrongly concluded that there was no criminality in the alleged actions. In other cases religious leaders knew that actions were or may have been criminal. However, leaders of religious institutions typically did not report allegations to police. Leaders of religious institutions were often reluctant to remove alleged perpetrators of child sexual abuse from positions in ministry or employment after suspicions of child sexual abuse were raised or allegations were received. In some cases perpetrators made admissions of behaviour amounting to child sexual abuse, yet religious leaders were still reluctant to take decisive action or report them to police. Victims who reported child sexual abuse were at times assured by leaders of religious institutions that action would be taken against alleged perpetrators, when often none was. The number of complaints received by some religious institutions, often including multiple complaints about the same individual, suggested a pattern of inaction in responding to alleged perpetrators of child sexual abuse. Some alleged perpetrators remained in the same positions with access to children for years, some for decades, after initial and successive allegations were raised. Some leaders of religious institutions made serious errors of judgment in the face of compelling evidence of child sexual abuse, by giving alleged perpetrators a ‘second chance’ with continued Royal Commission into Institutional Responses to Child Sexual Abuse 53 or successive appointments. This included moving alleged perpetrators to new positions in different locations where they were offered a ‘fresh start’, untarnished by their history of sexual offending or previous allegations. In some instances, these new appointments were geographically removed from the locations where the original complaints arose and involved movements across Australia and between different religious institutions. The communities that alleged perpetrators were moved into were in some cases not made aware of the risks these individuals posed. Leaders of religious institutions commonly allowed alleged perpetrators to continue in ministry or employment with little or no risk management or monitoring of their interactions with children. In many cases, supervisory arrangements were either not put in place or were not effective. Some perpetrators who continued in ministry or employment continued to sexually abuse children. Across religious institutions, the inadequacy of internal disciplinary systems and the limited use of disciplinary measures meant that some perpetrators of child sexual abuse were not disciplined at all; some were disciplined, but in a minimal way; and others were disciplined, but only many years after allegations were raised or they were convicted. This often meant that perpetrators who were in religious ministry retained their religious titles, and lay perpetrators remained attached to religious institutions in circumstances where it was plainly inappropriate for them to do so. Instead of reporting allegations to police or engaging with formal disciplinary processes for the dismissal of perpetrators of child sexual abuse from religious ministry, people who responded to allegations in religious institutions sometimes encouraged perpetrators to retire or resign as a way of dealing with these matters ‘quietly’. Some leaders of religious institutions also took steps to conceal the real reasons why people were removed from positions in ministry or employment following allegations or admissions of child sexual abuse. This included, for example, allowing perpetrators to retire or resign on false grounds, such as for health reasons. Commencing in the 1990s, some religious organisations developed protocols for responding to complaints of child sexual abuse, as well as redress processes. For some survivors, engaging with such redress processes was a positive experience that contributed to their healing. However, many survivors told us that their experiences were difficult, frightening or confusing. Religious institutions frequently failed to provide appropriate care and support for survivors during redress processes, civil litigation and criminal proceedings. This sometimes exacerbated the trauma experienced by survivors. Processes for receiving and responding to complaints and claims for redress were often overly legalistic, lacked transparency, involved generic apologies or no apologies at all, and failed to appropriately recognise the long-term and devastating impacts of child sexual abuse on victims, survivors and their families. 54 Final Report: Preface and executive summary Common contributing factors across religious institutions Multiple and often interacting factors have contributed to the occurrence of child sexual abuse in religious institutions and to inadequate institutional responses. Our work suggests these include a combination of cultural, governance and theological factors. In several of the religious institutions we examined, the central factor, underpinning and linked to all other factors, was the status of people in religious ministry. We repeatedly heard that the status of people in religious ministry, described in some contexts as ‘clericalism’, contributed to the occurrence of child sexual abuse in religious institutions and to inadequate institutional responses. The power and authority exercised by people in religious ministry gave them access to children and created opportunities for abuse. Children and adults within religious communities frequently saw people in religious ministry as figures who could not be challenged and, equally, as individuals in whom they could place their trust. Within religious institutions there was often an inability to conceive that a person in religious ministry was capable of sexually abusing a child. This resulted in a failure by adults to listen to children who tried to disclose sexual abuse, a reluctance by religious leaders to take action when faced with allegations against people in religious ministry, and a willingness of religious leaders to accept denials from alleged perpetrators. In some cases, it is clear that leaders of religious institutions knew that allegations of child sexual abuse involved actions that were or may have been criminal, or perpetrators made admissions. However, there was a tendency to view child sexual abuse as a forgivable sin or a moral failing rather than a crime. Some leaders of religious institutions claimed to have had a general lack of understanding about paedophilia and conduct amounting to child sexual abuse. Others inappropriately saw an allegation of child sexual abuse as an ‘aberration’ or a ‘one-off incident’ and not as part of a pattern of behaviour. Consequently, rather than being treated as criminal offences, allegations and admissions of child sexual abuse were often approached through the lens of forgiveness and repentance. This is reflected in the forgiveness of perpetrators through the practice of religious confession, as well as encouraging victims to forgive those who abused them. Royal Commission into Institutional Responses to Child Sexual Abuse 55 Many leaders of religious institutions demonstrated a preoccupation with protecting the institution’s ‘good name’ and reputation. Actions were often taken with the aim of avoiding, preventing or repairing public scandal, and concealing information that could tarnish the image of the institution and its personnel, or negatively affect its standing in the community. In some cases, the structure and governance of religious institutions may have inhibited effective institutional responses to child sexual abuse. Independent, autonomous or decentralised governance structures often served to protect leaders of religious institutions from being scrutinised or held accountable for their actions, or lack of action, in responding to child sexual abuse. In some religious institutions, the absence or insufficient involvement of women in leadership positions and governance structures negatively affected decision-making and accountability, and may have contributed to inadequate institutional responses to child sexual abuse. Leaders of both the Catholic Church and the Anglican Church told us they believed that the involvement of women in leadership positions would contribute to making their institutions safer for children. The interpretation and, at times, inappropriate application of religious laws, rules or principles in some religious organisations also contributed to inadequate institutional responses to child sexual abuse by hindering appropriate internal action on allegations of abuse and by acting as a barrier to external reporting. It is clear that for some religious organisations, internal laws or specific scriptural, doctrinal or theological principles present an ongoing obstacle to the reforms needed to ensure that children are safe from sexual abuse in religious institutions. Anglican Church Seven of our case studies examined responses to child sexual abuse in institutions managed by or affiliated with the Anglican Church. Three of these case studies focused on the institutional responses of various dioceses and one associated organisation, the Church of England Boys’ Society. The remainder examined the institutional responses of schools, each of which had varying degrees of oversight and governance by the Anglican Church. As at 31 May 2017, of the 4,029 survivors who told us during private sessions about child sexual abuse in religious institutions, 594 survivors (14.7 per cent) told us about abuse in Anglican institutions. The majority (76.4 per cent) were male and 23.4 per cent were female. The average age of victims at the time of first abuse was 10.6 years. Of the 376 survivors who told us about the age of the person who sexually abused them, 309 survivors (82.2 per cent) told us about abuse by an adult and 90 survivors (23.9 per cent) told us about abuse by a child. A small number of survivors told us about abuse by an adult and by a child. Of the 309 survivors who told us about sexual abuse by an adult, 95.8 per cent said they were abused by a male adult. Of the 565 survivors who told us about the position held by a perpetrator, 26.0 per cent told us about perpetrators who were people in religious ministry. This was followed by teachers (21.8 per cent), residential care workers (15.0 per cent) and housemasters (11.5 per cent). 56 Final Report: Preface and executive summary The response of the Anglican Church Our consideration of the early institutional responses of the Anglican Church to allegations of child sexual abuse revealed multiple failures. Before the early 2000s, leaders of Anglican institutions often dismissed, did not believe, or minimised allegations of child sexual abuse against both clergy and lay people. Some leaders of Anglican institutions who responded to complaints during this time told victims that there was nothing they could do, suggested that victims had misinterpreted alleged perpetrators’ behaviour, or told victims that they should be ‘forgiving’ or ‘let sleeping dogs lie’. Survivors told us of the devastating impacts of such responses. Senior Anglican Church personnel at times asked complainants to remain silent, in one case we were told of, ‘to protect the good name of the church’. We heard of instances where senior Anglican Church personnel raised the threat of potential legal action against survivors and others who made complaints. We heard that such threats dissuaded complainants from reporting to police. Before the early 2000s, Anglican Church personnel rarely reported complaints of child sexual abuse to police or other civil authorities and, in some cases, those who made complaints to the Anglican Church were actively discouraged from taking further action. In some cases, alleged perpetrators were not reported to police despite them having made admissions relating to child sexual abuse to a bishop. In other cases, alleged perpetrators were not reported to police despite multiple allegations being made over years or decades. Where policies requiring reporting to police existed, they were not followed. One Anglican bishop acknowledged that had he gone to the police, much suffering would have been avoided. Before the early 2000s, a common response to complaints of child sexual abuse was to allow the alleged perpetrators to remain in ministry or lay involvement in Anglican institutions, sometimes for years or decades. In some cases conditions were imposed, or were purportedly imposed, on those against whom allegations had been made. However, we found that these conditions failed to adequately mitigate the risks to children, or were not complied with. In some cases, there were further allegations of child sexual abuse. At times, clergy and lay people were promoted and progressed through the ranks of Anglican institutions even after allegations of child sexual abuse had been made against them. In some instances clergy and lay people against whom allegations had been made were allowed to resign or retire quietly, to avoid scandal for the Anglican Church. Disciplinary action that could have been taken against some clergy was not taken. We heard that the disciplinary mechanism available to dioceses (the diocesan tribunal system) was rarely used. Where disciplinary proceedings were held, the processes at times caused additional trauma to survivors. Royal Commission into Institutional Responses to Child Sexual Abuse 57 Since 2004, Anglican Church dioceses in Australia have adopted and implemented a range of measures under a professional standards framework to respond to complaints of child sexual abuse, with the intention of achieving a consistent national approach. However, there remain differences in the way this framework operates in each of the 23 dioceses, leading to inconsistent outcomes for survivors. The professional standards framework, while not specifically mandating that allegations of child sexual abuse be reported to police or other civil authorities, nevertheless requires dioceses to have procedures for working with law enforcement, prosecution and child protection authorities. Furthermore, professional standards committees have a power and a duty to refer information to such authorities. However, our case studies showed that where policies existed, Anglican Church personnel did not necessarily report historical allegations of child sexual abuse to civil authorities in a timely manner, if at all. Following the introduction of the professional standards framework, there was a shift away from the tribunal-based system of disciplining clergy to a mechanism that considers whether clergy and church workers remain fit to hold a licence, office or position of responsibility where allegations have been made against them. However, our case studies showed that such disciplinary action was not always taken, and the process could be long and protracted. We also heard that lay people involved in the governance of the Anglican Church can significantly influence the prevailing culture of a diocese. In the Diocese of Newcastle in New South Wales, this led to child safety not being prioritised, the undermining of attempts to implement professional standards processes, and a backlash directed at bishops and others in leadership positions when they sought to bring about positive cultural change in relation to child sexual abuse. Although pastoral care and assistance schemes have operated in most Anglican Church dioceses since the 1990s, we heard that these were not always followed or properly implemented. Where there were civil claims, sometimes the approach adopted by a diocese was legalistic and defensive, which caused further trauma for some survivors. A number of Anglican bishops who gave evidence during our institutional review hearing on the Anglican Church told us that their dioceses had sought to improve their responses to survivors. Despite this, we heard from some survivors about their negative experiences with diocese-based redress schemes, including delays, inconvenient processes, and perceptions that the maximum payments available through these schemes were inadequate. 58 Final Report: Preface and executive summary Contributing factors in the Anglican Church The lack of a consistent national approach in the Anglican Church to responding to child sexual abuse has led to inconsistent outcomes for survivors. Barriers to a consistent national approach include dispersed and decentralised authority, diocesan autonomy, and theological and cultural differences between dioceses. Given these barriers, the Anglican Church should develop a mechanism to not only drive a consistent approach to child safety, but also monitor its adoption in the 23 dioceses and their affiliated institutions (Recommendations 16.32 and 16.33). A failure of leadership by diocesan bishops contributed to inadequate responses to child sexual abuse. In two of our case studies, alleged perpetrators remained in positions where they had access to children after a bishop had received a complaint of child sexual abuse about them, and there were subsequently further allegations of child sexual abuse. These failures occurred in a context where there was a lack of oversight and accountability of bishops, and no uniform process for complaints about bishops’ handling of allegations of abuse. We recommend that the Anglican Church adopt a uniform episcopal standards framework to ensure that bishops and former bishops are accountable to an appropriate authority or body in relation to their response to complaints of child sexual abuse (Recommendation 16.1). In some instances, conflicts of interest arose for diocesan bishops and senior diocesan officeholders in their responses to individuals accused of child sexual abuse. Bishops have close relationships with clergy in their dioceses, which at times clearly affected their response to allegations. Conflicts also arose for senior officeholders as a consequence of their personal and professional interests. We recommend that the Anglican Church adopt a policy relating to the management of actual or perceived conflicts of interest that may arise in relation to allegations of child sexual abuse (Recommendation 16.2). Aspects of clericalism – that is, the theological belief that the clergy are different to the laity – may have contributed to the occurrence of child sexual abuse in the Anglican Church and impeded appropriate responses to such abuse. A culture of clericalism may have discouraged survivors and others from reporting child sexual abuse, including to police. Greater transparency and a more extensive role for women in both ordained ministry and lay leadership positions in the Anglican Church, among other measures, could address the negative impacts of this culture of clericalism. In some cases in the Anglican Church there was a focus on extending forgiveness and compassion to perpetrators rather than properly considering the needs of victims. One consequence of a culture of forgiveness, when combined with a poor understanding of child sexual abuse, was that survivors were encouraged to forgive the person who abused them. Similarly, third parties who raised complaints were encouraged to forgive the person they suspected of perpetrating child sexual abuse. Royal Commission into Institutional Responses to Child Sexual Abuse 59 In addition to these cultural factors there were failures in the selection and screening of people for ordination. Clergy and church workers in the Anglican Church also need professional supervision and support. We recommend that the Anglican Church develop a national approach to the selection, screening and training of candidates for ordination (Recommendation 16.4). We further recommend that the Anglican Church develop and implement mandatory national standards to ensure that all people in religious or pastoral ministry undertake regular professional development, undertake professional/pastoral supervision and undergo regular performance appraisals (Recommendation 16.5). Catholic Church Fifteen of our case studies examined responses to child sexual abuse in Catholic institutions, including in schools, residential institutions and places of worship, and during religious activities. Case studies also focused on the operation of redress processes in the Catholic Church and the operation of canon law in relation to priests against whom allegations had been made. Case studies considered the responses to child sexual abuse by a number of Catholic dioceses and religious institutes (also known as religious orders or congregations) including the Christian Brothers, the Marist Brothers and the Sisters of Mercy. As at 31 May 2017, of the 4,029 survivors who told us during private sessions about child sexual abuse in religious institutions, 2,489 survivors (61.8 per cent) told us about abuse in Catholic institutions. The majority (73.9 per cent) were male and 25.9 per cent were female. A small number of survivors identified as gender-diverse or did not indicate their gender. The average age of victims at the time of first abuse was 10.4 years. Of the 1,489 survivors who told us about the age of the person who sexually abused them, 1,334 survivors (89.6 per cent) told us about abuse by an adult and 199 survivors (13.4 per cent) told us about abuse by a child. A small number of survivors told us about abuse by an adult and by a child. Of the 1,334 survivors who told us about abuse by an adult, 96.2 per cent said they were abused by a male adult. Of the 2,413 survivors who told us about the position held by a perpetrator, 74.7 per cent told us about perpetrators who were people in religious ministry and 27.6 per cent told us about perpetrators who were teachers. Some survivors told us about more than one perpetrator. Of the 1,049 institutions identified in the Catholic Church claims data, 549 were schools and 83 were residential institutions. However, claims of child sexual abuse were much more likely to be made in relation to residential institutions than schools – an average of 16 claims were made in relation to each residential institution, while an average of four claims were made in relation to each school. We also sought information from 75 Catholic archdioceses/dioceses and religious institutes about the number of their members who ministered in Australia from 1 January 1950 to 31 December 2010, and how long each of them ministered. We then calculated the proportion 60 Final Report: Preface and executive summary of members of these Catholic Church authorities who ministered in the period 1950 to 2010 who were alleged perpetrators, taking into account the duration of ministry (a weighted average methodology). Of all Catholic priests included in the survey who ministered between 1950 and 2010, taking into account the duration of ministry, 7 per cent were alleged perpetrators. The weighted proportion of alleged perpetrators in specific Catholic Church authorities included: the St John of God Brothers (40.4 per cent); the Christian Brothers (22.0 per cent); the Benedictine Community of New Norcia (21.5 per cent); the Salesians of Don Bosco (20.9 per cent); the Marist Brothers (20.4 per cent); the Diocese of Sale in Victoria (15.1 per cent); the De La Salle Brothers (13.8 per cent) and the Archdiocese of Adelaide in South Australia (2.4 per cent). The response of the Catholic Church Our inquiry revealed numerous cases where senior officials of Catholic Church authorities knew about allegations of child sexual abuse in Catholic institutions but failed to take effective action. While the knowledge and understanding of child sexual abuse may have developed and deepened in the last two decades of the 20th century, it is clear that Catholic Church leaders were aware of the problem well before that time. The response before the development of national procedures We have concluded that there were catastrophic failures of leadership of Catholic Church authorities over many decades, particularly before the 1990s. Those failures led to the suffering of a great number of children, their families and wider communities. For many, the harm was irreparable. In numerous cases, that harm could have been avoided had Catholic Church authorities acted in the interests of children rather than in their own interests. Few survivors of child sexual abuse that occurred before the 1990s described receiving any kind of formal response from the relevant Catholic Church authority when they reported the abuse. Instead they were often disbelieved, ignored or punished, and in some cases were further abused. The responses of various Catholic Church authorities to complaints and concerns about priests and religious (members of religious institutes of the Catholic Church) were remarkably and disturbingly similar. It is apparent that the avoidance of public scandal, the maintenance of the reputation of the Catholic Church and loyalty to priests and religious largely determined the responses of Catholic Church authorities when allegations of child sexual abuse arose. Royal Commission into Institutional Responses to Child Sexual Abuse 61 Complaints of child sexual abuse were not reported to police or other civil authorities, contributing to the Catholic Church being able to keep such matters in-house and out of the public gaze. Had Catholic Church authorities reported all complaints to police, they could have prevented further sexual abuse of children. In some cases, leaders of Catholic Church authorities were reluctant to remove alleged perpetrators from positions that involved contact with children. Some alleged perpetrators were allowed to remain in religious ministry in the same positions and locations for extended periods of time after allegations of child sexual abuse were raised; in some cases there were further allegations of the sexual abuse of children. If appropriate protective steps had been taken, subsequent abuse may have been avoided. In other cases, alleged perpetrators were moved to new positions in other locations after allegations were raised, where in some instances they continued to sexually abuse children. The removal of priests and religious from locations where allegations of child sexual abuse arose, and their subsequent transfer to new locations, was one of the most common responses adopted across Catholic Church authorities in Australia before the development of national procedures in the early 1990s. Some priests and religious brothers who were accused of child sexual abuse were moved on multiple occasions. When the priest or religious left, on occasions hurriedly, untrue or misleading reasons were sometimes given for their departure. On occasions, the move was timed to avoid raising suspicion. In some cases, no warning, or no effective warning, was given to the new parish or school of the risk posed by the incoming priest or religious. Until at least the early 1990s, alleged perpetrators were often sent away for a period of ‘treatment’ or ‘reflection’ before being transferred to a new appointment or being allowed to continue in their existing one. Some leaders of Catholic Church authorities believed that psychological or other forms of counselling could assist or ‘cure’ alleged perpetrators of child sexual abuse. In some cases, priests or religious against whom allegations of child sexual abuse had been made were simply granted leave, or restrictions were placed on their ministry, such as by appointing them to administrative positions. These measures were not always effective in preventing them from having access to children. Throughout this period, there was a system under canon law for disciplining priests and religious accused of child sexual abuse, under which the most severe penalty was dismissal from the priesthood or religious life and return to the lay state. However, the Catholic Church authorities we examined did not engage with these canonical processes for priests or religious accused of child sexual abuse in the decades before the development of national procedures in the early 1990s. Instead, bishops and religious superiors adopted a range of informal responses 62 Final Report: Preface and executive summary aimed at limiting the capacity of alleged perpetrators to engage in ministry or, at most, permanently removing alleged perpetrators from particular dioceses or religious congregations. These measures did not always prevent alleged perpetrators from continuing in ministry in another Catholic Church authority, or continuing in other positions where they had access to children. The clearest indication of the inappropriateness and ineffectiveness of institutional responses by Catholic Church authorities to alleged perpetrators of child sexual abuse in this period is that often these responses did not prevent the further sexual abuse of children. Some perpetrators continued to offend even after there had been multiple responses following initial and successive allegations of child sexual abuse. Development of national procedures In the late 1980s, Catholic Church leaders began to discuss the issue of child sexual abuse more formally at the Australian Catholic Bishops Conference (ACBC). In 1988 the ACBC established a dedicated committee to consider issues related to child sexual abuse, and the adoption of a series of national protocols from 1990 onwards was an important step towards formulating a nationally consistent response. However, these protocols retained a focus on responding to the alleged perpetrators of sexual abuse rather than on the needs of victims, and their implementation by Catholic Church authorities was sporadic. By the mid-1990s there had been a shift in understanding about the appropriateness of keeping alleged perpetrators in ministry where they would remain in regular contact with children. At about the same time, members of the newly constituted Bishops Committee for Professional Standards recognised that a new protocol focusing on the needs of victims was required. The formulation and adoption of Towards Healing and the Melbourne Response in 1996 were considerable achievements in this regard. In November 1996, the ACBC agreed that Towards Healing would be implemented in March 1997. A month earlier, the then Archbishop of Melbourne, Archbishop George Pell, had announced that the archdiocese would proceed with the Melbourne Response. The introduction of the Melbourne Response shortly before the implementation of Towards Healing effectively meant there would not be a uniform national approach. Royal Commission into Institutional Responses to Child Sexual Abuse 63 Response to alleged perpetrators during and after the development of national procedures From the mid-1990s, there were some improvements in the responses of Catholic Church authorities to allegations of child sexual abuse. Alleged perpetrators began to be placed on administrative leave while complaints were investigated, and steps were taken to remove perpetrators from ministry if complaints were substantiated. However, these processes were not always followed and some measures masked the reasons for the action taken. Further, processes to dismiss priests and religious appear to have been rarely used during the 1990s and early 2000s. While the early protocols contained some provisions relating to alleged perpetrators of child sexual abuse, they did not comprehensively set out the obligations of bishops and religious superiors in responding to alleged perpetrators and convicted offenders. Furthermore, it appears that leaders of Catholic Church authorities were not always aware of or did not consistently follow these protocols. The early protocols did not require leaders of Catholic Church authorities to report allegations to police. Towards Healing did not mandate this until 2010. From the mid-1990s, leaders of Catholic Church authorities continued not to report alleged perpetrators to police, leaving this to victims and survivors. This had the effect of keeping many complaints from the public gaze and in some cases meant that children continued to be at risk. The early protocols saw the introduction of the approach that alleged perpetrators should be required to take leave from active duties while allegations were investigated. However, Catholic Church leaders in some cases did not take this action and alleged perpetrators continued in the same positions for extended periods of time after allegations had been raised. In other cases, alleged perpetrators were temporarily removed from religious ministry. Some were placed on types of leave such as sick leave, instead of administrative leave, which masked the reasons for which they were placed on leave. Some continued to have access to children. In the Catholic Church authorities we examined, it appears that, from the time that Towards Healing and the Melbourne Response were introduced, priests and religious were generally placed on administrative leave if allegations of child sexual abuse were made against them. Some bishops permitted priests to resign or retire following allegations of child sexual abuse in circumstances where it was not made publicly known that allegations had been made against them. Other priests were bestowed with honorific titles, such as Pastor Emeritus, at the time of their resignation, despite being the subject of allegations or having made admissions of child sexual abuse. 64 Final Report: Preface and executive summary Following the introduction of Towards Healing, bishops and religious superiors retained considerable latitude with respect to the measures they should take in response to perpetrators whose guilt had been admitted or proved. It appears that they took disciplinary steps under canon law to dismiss offenders in only a small number of cases during the 1990s and early 2000s. The reluctance of Catholic Church leaders to engage with canonical disciplinary processes may have been caused, in part, by confusion about those processes, as well as by a view that the Vatican tended to resolve matters in favour of offending priests. It may also have been due to the fact that formal canonical disciplinary processes took considerable time. The delayed or limited use of canon law processes to dismiss those found to have committed child sexual abuse meant that some perpetrators remained in the priesthood or in religious orders for many years after their guilt had been admitted or established. In addition, the Vatican was very slow to respond to petitions for dismissal from Catholic Church authorities in Australia, and it is clear that the Vatican’s approach to child sexual abuse by clergy was protective of the offender. One bishop told us that in a number of cases his requests to have offender priests dismissed from the clerical state were refused and he was instead directed to ensure that the priests live a life of prayer and penance. Response to survivors after the development of national procedures In several case studies we considered the experiences of victims and survivors of child sexual abuse who engaged with Towards Healing and the Melbourne Response. For some, participating in these processes was a positive experience that contributed to their healing. However, others told us that their experiences were difficult, frightening or confusing, and led to further harm and re-traumatisation. We recognise that many people who have engaged with the Towards Healing process since 1997 may have received greatly needed compassion and support and derived important benefits from their participation. However, some survivors have been disappointed by the process and critical of it. We heard from a number of survivors that the principles and procedures set out in Towards Healing were not followed by Catholic Church authorities. Some survivors told us that the personnel they engaged with did not communicate with them clearly or sensitively. In some cases, survivors felt they were not consulted about important decisions. Significantly, a number of survivors told us they perceived that the personnel they engaged with were insufficiently independent of the Catholic Church. Some told us they experienced a power imbalance between themselves and the Catholic Church representatives involved. Royal Commission into Institutional Responses to Child Sexual Abuse 65 We made a number of observations in relation to the Melbourne Response in our report on that case study. We observed that the practice of Independent Commissioners meeting survivors in their barrister’s chambers, an environment that may be threatening, if not overwhelming, was unlikely to provide a sense of confidence and security for a survivor. We said that the Archdiocese of Melbourne should meet the costs of lawyers for survivors and should inform survivors of this at the commencement of the process. We concluded that the Archdiocese should review the terms of appointment for the Independent Commissioners to further clarify expectations concerning the rights of victims and the reporting of allegations to police. We also observed that administrators or decision-makers in a redress scheme should never give advice to applicants about likely outcomes of a report to police, even if they are independent of the relevant institution. We observed that the Melbourne Response is a scheme heavily dominated by lawyers and that a traditional legal process is unlikely to provide the most supportive environment for survivors of child sexual abuse. In 2014, the Archbishop of Melbourne, Archbishop Denis Hart, announced a review of the Melbourne Response, the report of which he received in 2015. This review made recommendations including an increase to the cap on redress payments. In December 2016, Archbishop Hart announced that the cap on payments would be increased on 1 January 2017 and that additional payments would be made to survivors of child sexual abuse who had already received payments, to reflect the new cap. In case studies we also considered the experiences of survivors of child sexual abuse who pursued civil litigation against Catholic Church authorities, or who negotiated redress directly with Catholic Church authorities. Particular challenges arise in these cases, including the operation of statutory limitation periods and the need to identify a responsible party against whom to bring legal proceedings. We heard from a number of survivors who pursued civil litigation that Catholic Church authorities took advantage of the legal defences available to them and conducted litigation in a manner that did not adequately take account of the pastoral and other needs of survivors of child sexual abuse. We also heard that in some cases, Catholic Church authorities avoided or resisted meeting with communities affected by child sexual abuse and failed or refused to provide pastoral support to communities who both needed and requested it. We heard of instances where Catholic Church authorities withheld information from affected communities, which meant that people were not alerted to possible cases of child sexual abuse or were left with unanswered questions. 66 Final Report: Preface and executive summary Responses to child sexual abuse in Catholic schools In case studies we considered the responses of Catholic Church authorities to allegations of child sexual abuse in Catholic schools, including responses by teachers and principals, by Catholic Education Offices and by diocesan authorities and leaders of religious orders. Many of the responses were similar to those of other Catholic institutions. Allegations were not reported to police. Alleged perpetrators were commonly left in positions where they had access to children, or were moved to new locations, often remaining in teaching positions. In a number of cases, alleged perpetrators who were not removed from positions where they had access to children went on to further sexually abuse children. In relation to a number of cases we considered where alleged perpetrators were priests associated with Catholic schools, we concluded that the relevant bishop or archbishop knew about allegations of child sexual abuse but failed to take appropriate action to protect children from the risk of abuse, sometimes for years. Their inaction left these priests in positions where they had ongoing access to children in Catholic schools. It was left to principals and teachers to attempt to manage the risk these individuals posed to children. In relation to Catholic schools in the Archdiocese of Melbourne, we found that the employment structure, where the parish priest is the employer of the school principal and school staff for parish schools, is dysfunctional. There is a risk that having the priest as employer could act as a barrier to people reporting concerns about child sexual abuse. We recommend that parish priests should not be the employers of principals and teachers in Catholic schools (Recommendation 16.6). A common feature of cases we examined regarding Christian Brothers or Marist Brothers was that provincial leaders of these religious orders allowed religious brothers teaching in Catholic schools to remain in positions where they had access to children, or to move to different schools, despite allegations – in some cases numerous allegations – of child sexual abuse being made against them. During the time period considered by our case studies, the highly centralised structures for decision-making within the Marist Brothers and the Christian Brothers contributed to failures to respond appropriately to allegations of child sexual abuse. Contributing factors in the Catholic Church Child sexual abuse by Catholic clergy and religious may be explained by a combination of psychosexual and other related factors on the part of the individual perpetrator, and a range of institutional factors, including theology, governance and culture. The same theological, governance and cultural factors that contributed to the occurrence of the abuse also contributed to inadequate responses of Catholic institutions to that abuse. Royal Commission into Institutional Responses to Child Sexual Abuse 67 Individual factors Individual pathology is on its own insufficient to explain child sexual abuse perpetrated by Catholic clergy and religious. Rather, a heightened risk of child sexual abuse arises when specific pre-existing factors in relation to an individual’s psychosexual immaturity or psychosexual dysfunction combine with a range of situational and institutional factors. Factors that may influence whether a priest or religious is susceptible to sexually abusing a child include confusion about sexual identity, childish interests and behaviour, and lack of peer relationships. Further, some clergy and religious perpetrators appear to have been vulnerable to mental health issues, substance abuse and psychosexual immaturity. We heard that personality factors that may be associated with clergy and religious perpetrators include narcissism, dependency, cognitive rigidity and fear of intimacy. Although most of the perpetrators of child sexual abuse we heard about in Catholic institutions were male adults, and most victims were boys or adolescents, it is a misconception that all perpetrators who sexually abuse children of the same gender as them are same-sex attracted. Research suggests that child sexual abuse is not related to sexual orientation. Perpetrators can be straight, gay, lesbian or bisexual. Research indicates that men who identify as heterosexual are no more or less likely than men who identify as homosexual to perpetrate child sexual abuse. Vatican documents that link homosexuality to child sexual abuse are not in keeping with current understandings about healthy human sexuality. Clericalism Clericalism is at the centre of a tightly interconnected cluster of contributing factors. Clericalism is the idealisation of the priesthood, and by extension, the idealisation of the Catholic Church. Clericalism is linked to a sense of entitlement, superiority and exclusion, and abuse of power. Clericalism nurtured ideas that the Catholic Church was autonomous and self-sufficient, and promoted the idea that child sexual abuse by clergy and religious was a matter to be dealt with internally and in secret. The theological notion that the priest undergoes an ‘ontological change’ at ordination, so that he is different to ordinary human beings and permanently a priest, is a dangerous component of the culture of clericalism. The notion that the priest is a sacred person contributed to exaggerated levels of unregulated power and trust, which perpetrators of child sexual abuse were able to exploit. 68 Final Report: Preface and executive summary Clericalism caused some bishops and religious superiors to identify with perpetrators of child sexual abuse rather than victims and their families, and in some cases led to denial that clergy and religious were capable of child sexual abuse. It was the culture of clericalism that led bishops and religious superiors to attempt to avoid public scandal to protect the reputation of the Catholic Church and the status of the priesthood. We heard that the culture of clericalism continues in the Catholic Church and is on the rise in some seminaries in Australia and worldwide. Organisational structure and governance The governance of the Catholic Church is hierarchical. We heard that the decentralisation and autonomy of Catholic dioceses and religious institutes contributed to ineffective responses of Catholic Church authorities to child sexual abuse, as did the personalised nature of power in the Catholic Church and the limited accountability of bishops. The powers of governance held by individual diocesan bishops and provincials are not subject to adequate checks and balances. There is no separation of powers, and the executive, legislative and judicial aspects of governance are combined in the person of the pope and in diocesan bishops. Diocesan bishops have not been sufficiently accountable to any other body for decision-making in their handling of allegations of child sexual abuse or alleged perpetrators. There has been no requirement for their decisions to be made transparent or subject to due process. The tragic consequences of this lack of accountability have been seen in the failures of those in authority in the Catholic Church to respond adequately to allegations and occurrences of child sexual abuse. The hierarchical structure of the Catholic Church created a culture of deferential obedience in which poor responses to child sexual abuse went unchallenged. Where senior clergy and religious with advisory roles to diocesan bishops or provincials of religious institutes were aware of allegations of child sexual abuse, often they did not challenge or attempt to remedy the inadequate responses of their bishop or provincial, or believed that they could not do so. In this regard, Catholic Church authorities can learn lessons from Catholic Church organisations involved in human services, many of which are now incorporated bodies. The exclusion of lay people and women from leadership positions in the Catholic Church may have contributed to inadequate responses to child sexual abuse. In accordance with contemporary standards of good governance, we encourage the Catholic Church in Australia to explore and develop ways in which its structures and practices of governance may be made more accountable, more transparent, more meaningfully consultative and more participatory, including at the diocesan and parish level. We recommend that the ACBC conduct a national review of the governance and management structures of dioceses and parishes, including in relation to issues of transparency, accountability, consultation and participation of lay men and women (Recommendation 16.7). Royal Commission into Institutional Responses to Child Sexual Abuse 69 We accept that diocesan bishops and provincials of religious institutes are increasingly making use of professional expertise in the management of their various institutions, including in the administration of their responses to child sexual abuse. We also accept that the Catholic education and Catholic community services sectors have increasing lay involvement in their governance, operate professionally and are subject to significant government regulation. Leadership In its responses to child sexual abuse, the leadership of the Catholic Church has failed the people of the Catholic Church in Australia, in particular its children. The results of that failure have been catastrophic. It appears that some candidates for leadership positions have been selected on the basis of their adherence to specific aspects of church doctrine and their commitment to the defence and promotion of the institutional Catholic Church, rather than on their capacity for leadership. This meant that some bishops were ill equipped and unprepared for the challenges of dealing with child sexual abuse and responding to emerging claims. Some Catholic Church leaders in Australia have prioritised protecting the reputation of the Church at the expense of the welfare of individuals when responding to child sexual abuse. Meaningful and direct consultation with, and participation of, lay people in the appointment of bishops, as well as greater transparency in that process, would make bishops more accountable and responsive to the lay people of the Catholic Church, including in responding to child sexual abuse. We recommend that the ACBC request that the Holy See amend the appointment process for bishops (Recommendation 16.8). Canon law The disciplinary system imposed by canon law for dealing with clergy and religious who sexually abuse children contributed to the failure of the Catholic Church to provide an effective and timely response to alleged perpetrators and perpetrators. We heard that canon law as it applied to child sexual abuse was cumbersome, complex and confusing. We recommend that the ACBC request that the Holy See amend a number of provisions in canon law. We recommend that, in canon law, offences related to child sexual abuse be framed as crimes against the child rather than ‘delicts’ against morals or a breach of the obligation to observe celibacy (Recommendation 16.9). Further, there should be no provision in canon law that attempts to prevent, hinder or discourage compliance with mandatory reporting laws by bishops or religious superiors. We recommend that canon law be amended so that the ‘pontifical secret’ does not apply to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse (Recommendation 16.10). 70 Final Report: Preface and executive summary We also recommend that canon law be amended to ensure that the ‘pastoral approach’ is not an essential precondition to the commencement of canonical action relating to child sexual abuse (Recommendation 16.11); to remove the time limit (prescription) for commencement of canonical actions relating to child sexual abuse (Recommendation 16.12); and to amend the ‘imputability’ defence so that a diagnosis of paedophilia is not relevant to the prosecution of or penalty for a canonical offence relating to child sexual abuse (Recommendation 16.13). A number of the issues we have identified have impeded the permanent removal from ministry of priests or religious against whom a complaint of child sexual abuse has been substantiated, or the dismissal of priests or religious convicted of an offence related to child sexual abuse. We recommend that if a complaint of child sexual abuse against a person in religious ministry is substantiated, the person should be permanently removed from ministry. Canon law should be amended to this effect (Recommendations 16.14 and 16.55). We also recommend that canon law be amended to ensure that priests and religious convicted of a child sexual abuse-related offence in a civil court are dismissed from the priesthood and/or religious life (Recommendations 16.14 and 16.56). Celibacy – not a direct cause but a contributing factor While not a direct cause of child sexual abuse, we are satisfied that compulsory celibacy (for clergy) and vowed chastity (for members of religious institutes) have contributed to the occurrence of child sexual abuse, especially when combined with other risk factors. We acknowledge that only a minority of Catholic clergy and religious have sexually abused children. However, based on research we conclude that there is an elevated risk of child sexual abuse where compulsorily celibate male clergy or religious have privileged access to children in certain types of Catholic institutions, including schools, residential institutions and parishes. For many Catholic clergy and religious, celibacy is implicated in emotional isolation, loneliness, depression and mental illness. Compulsory celibacy may also have contributed to various forms of psychosexual dysfunction, including psychosexual immaturity, which pose an ongoing risk to the safety of children. For many clergy and religious, celibacy is an unattainable ideal that leads to clergy and religious living double lives, and contributes to a culture of secrecy and hypocrisy. This culture appears to have contributed to some clergy and religious overlooking violations of celibacy and minimising child sexual abuse as forgivable moral lapses committed by colleagues who were struggling to live up to an ideal that for many proved impossible. We recommend that the ACBC request that the Holy See consider introducing voluntary celibacy for diocesan clergy (Recommendation 16.18). We also recommend that Catholic religious institutes implement measures to address the risks of harm to children and the potential psychological and sexual dysfunction associated with celibacy (Recommendation 16.19). Royal Commission into Institutional Responses to Child Sexual Abuse 71 Selection, screening and initial formation It is apparent that initial training or formation practices were inadequate in the past, particularly before the 1970s, in relation to the screening of candidates for admission to the priesthood or religious life, preparing seminarians and novices to lead a celibate life, and preparing them for the realities of life in religious or pastoral ministry. The initial training of priests and religious occurred in segregated, regimented, monastic and clericalist environments, and was based on obedience and conformity. These arrangements are likely to have been detrimental to psychosexual maturity and to have produced clergy and religious who were cognitively rigid. This increased the risk of child sexual abuse. Although from the 1970s there have been improvements in the selection, screening and formation of candidates for the priesthood and religious life, it appears that these have largely been implemented in an ad hoc and inconsistent manner. In particular, there is still a lack of consistency between seminaries and houses of religious formation in relation to the selection and screening of candidates. We recommend that the Catholic Church adopt a national protocol for screening candidates and that bishops and religious superiors draw on wideranging professional advice in their decision-making in relation to the admission of individuals to ordination or final vows (Recommendations 16.21 and 16.22). We also recommend that guideline policy documents relating to the formation of clergy and religious explicitly address child sexual abuse and its prevention (Recommendation 16.23). We also heard that certain models of formation may be instrumental in inculcating a culture of clericalism. We recommend that the ACBC and Catholic Religious Australia conduct a national review of current models of initial formation (Recommendation 16.24). Oversight, support and ongoing training of people in religious ministry It is apparent that Catholic clergy and religious have not received adequate training in relation to professional responsibility, the maintenance of healthy boundaries, and ministerial and professional ethics. It is clear that inadequate preparation for ministry, loneliness, social isolation, and personal distress related to the difficulties of celibacy, have contributed to the sexual abuse of children. We recommend mandatory national standards to ensure that all people in religious or pastoral ministry in the Catholic Church in Australia undertake regular professional development, undertake professional/pastoral supervision, and undergo regular performance appraisals (Recommendation 16.25). We also heard that specialised programs for the screening, induction, and professional support and supervision of priests and religious recruited from overseas are inadequate. We recommend the creation of targeted programs for these purposes (Recommendation 16.46). 72 Final Report: Preface and executive summary Sacrament of reconciliation (confession) When I went into the confessional, he [the priest] asked me what ‘Father Holmes’ was doing and I told him. His answer was to give me 10 Hail Marys and 10 Our Fathers, and he told me that I was a disgusting girl and I wasn’t allowed to let [Father Holmes] touch me anymore. That’s something I will never get out of my mind – him turning his back on me and not helping me.14 We are satisfied that the practice of the sacrament of reconciliation (confession) contributed to both the occurrence of child sexual abuse in the Catholic Church and to inadequate institutional responses to abuse. In case studies and private sessions we heard that disclosures of child sexual abuse by perpetrators or victims during confession were not reported to civil authorities or otherwise acted on. We heard that the sacrament is based in a theology of sin and forgiveness, and that some Catholic Church leaders have viewed child sexual abuse as a sin to be dealt with through private absolution and penance rather than as a crime to be reported to police. The sacrament of reconciliation enabled perpetrators to resolve their sense of guilt without fear of being reported. Also, the sacrament created a situation where children were alone with a priest. In some cases we heard that children experienced sexual abuse perpetrated by Catholic priests in confessionals. We recommend that any religious organisation with a rite of religious confession implement a policy that confession for children be conducted in an open space and in a clear line of sight of another adult (Recommendation 16.48). In our Criminal justice report we recommended the introduction of a ‘failure to report’ offence (Criminal justice report, Recommendation 33). In our Final Report, we recommend amending laws concerning mandatory reporting to child protection authorities to ensure that people in religious ministry are included as a mandatory reporter group (Recommendation 7.3). We also recommend that there should be no exemption from obligations to report under mandatory reporting laws or the proposed ‘failure to report’ offence in circumstances where knowledge or suspicions of child sexual abuse are formed on the basis of information received in or in connection with religious confession (Recommendation 7.4 and Criminal justice report, Recommendation 35). Royal Commission into Institutional Responses to Child Sexual Abuse 73 The Salvation Army As at 31 May 2017, of the 4,029 survivors who told us during private sessions about child sexual abuse in religious institutions, 294 survivors (7.3 per cent) told us about abuse in Salvation Army institutions. The majority (73.1 per cent) were male and 26.9 per cent were female. The average age of victims at the time of first abuse was 10.3 years. Of the 174 survivors who told us about the age of the person who sexually abused them, 126 survivors (72.4 per cent) told us about abuse by an adult and 71 survivors (40.8 per cent) told us about abuse by a child. Some survivors told us about abuse by an adult and by a child. Of the 126 survivors who told us about abuse by an adult, 88.9 per cent said they were abused by a male adult. Of the 274 survivors who told us about the position held by a perpetrator, 7.3 per cent told us about perpetrators who were people in religious ministry. Most survivors told us about perpetrators who were residential care workers (46.4 per cent) or housemasters (20.1 per cent). The response of The Salvation Army In our case studies examining The Salvation Army we heard that in Salvation Army institutions, particularly residential institutions, vulnerable children were preyed upon by those responsible for their care, and by other abused and traumatised children. Such abuse was not inevitable, but resulted from the failures of individuals, including many in positions of authority and leadership. The failure of Salvation Army personnel and leaders to respond appropriately and with compassion when victims had the courage to disclose their experiences of abuse is appalling. In many instances, despite having policies and procedures in place to deal with the discipline of officers and appropriate conduct in relation to children, The Salvation Army failed to follow them. As a consequence, it failed to protect children in its care. We found that The Salvation Army left some alleged perpetrators in positions where they had access to children despite multiple complaints that they had sexually abused children in their care. Some were transferred to other Salvation Army institutions. While some alleged perpetrators were dismissed from officership in The Salvation Army because of allegations of child sexual abuse, in some cases this was undermined by their later re-admission to The Salvation Army. From our case studies, it appears that allegations of child sexual abuse against Salvation Army personnel were reported to police or other civil authorities by The Salvation Army on only a few occasions. Victims of child sexual abuse in Salvation Army children's homes who disclosed that they had been abused were frequently disbelieved or accused of lying, or no action was taken in response. In some cases victims who disclosed sexual abuse were physically punished or further abused as a result. Many survivors who later sought redress, including apologies, from The Salvation Army were disappointed or further traumatised by the manner in which their claims were handled. 74 Final Report: Preface and executive summary Contributing factors in The Salvation Army Some of the factors that contributed to child sexual abuse in The Salvation Army or to inadequate institutional responses to the abuse were broadly associated with the operation of residential institutions in the period up to the 1990s. This included resourcing constraints that affected both staffing levels and living conditions, impacting the quality of care provided to children. Staff were inadequately trained and complaint handling policies were inadequate or non-existent. Further, there was limited government oversight of and poor external accountability for those running Salvation Army residential institutions. Other contributing factors related to aspects of the organisational culture in which managers of Salvation Army institutions wielded absolute authority over the children in their care. The hierarchical management structure of The Salvation Army contributed to inadequate responses to child sexual abuse. Subordinate officers and staff did not challenge managers about the abuse that they perpetrated, or their response to complaints of child sexual abuse, and children did not have a higher authority from whom to seek help. Within this organisational culture, children were devalued and often treated harshly. Further, as was common across many religious institutions, The Salvation Army’s responses to allegations of child sexual abuse were underpinned by a concern for the reputation of the organisation. Jehovah’s Witnesses As at 31 May 2017, of the 4,029 survivors who told us during private sessions about child sexual abuse in religious institutions, 70 survivors told us about abuse in the Jehovah’s Witnesses. Of the victims we heard about, 80.0 per cent were female. The average age of victims at the time of first abuse was 8.4 years. Of the 53 survivors who told us about the age of the person who sexually abused them, 44 survivors (83.0 per cent) told us about abuse by an adult and 12 survivors (22.6 per cent) told us about abuse by a child. A small number of survivors told us about abuse by an adult and by a child. The vast majority of survivors who told us about abuse by an adult perpetrator said they were abused by a male adult. Of the 65 survivors who told us during private sessions about the role of a perpetrator, 26.2 per cent told us about child sexual abuse by family members. This was considered to be within our Terms of Reference when the allegations of sexual abuse were reported to and handled by the religious institution. We also heard from survivors about other perpetrators including volunteers(13.8 per cent), lay leaders (9.2 per cent) and other adults who attended the religious institution (9.2 per cent). As part of our case study examining the response of the Jehovah’s Witness organisation to allegations of child sexual abuse, the organisation provided us with files containing allegations, reports or complaints of child sexual abuse. They provided us with documents relating to at least 1,800 children and over 1,000 alleged perpetrators. Royal Commission into Institutional Responses to Child Sexual Abuse 75 The response of the Jehovah’s Witnesses Our case study regarding the Jehovah’s Witnesses showed that the organisation dealt with allegations of child sexual abuse in accordance with internal, scripturally based disciplinary policies and procedures. Individuals making complaints of child sexual abuse were required to make their allegations in the presence of the person against whom the allegations were made. The ‘two-witness’ rule applied – that is, wrongdoing could only be established on the basis of testimony from two or more ‘credible’ eyewitnesses to the same incident (or strong circumstantial evidence testified to by at least two witnesses or testimony of two witnesses to the same kind of wrongdoing). Allegations were investigated by elders, all of whom were men and had no relevant training. We found that in deciding the sanctions to impose and/or the precautions to take in relation to a known or suspected perpetrator of child sexual abuse, the Jehovah’s Witness organisation had inadequate regard for the risk that the person might reoffend. Alleged perpetrators of child sexual abuse who were removed from their congregations as a result of allegations of child sexual abuse were frequently reinstated. We found no evidence of the Jehovah’s Witness organisation reporting allegations of child sexual abuse to police or other civil authorities. During our case study we heard from survivors of child sexual abuse that they were not provided with adequate information by the Jehovah’s Witness organisation about the investigation of their allegations, felt unsupported by the elders who handled the allegations, and felt that the investigation process was a test of their credibility rather than that of the alleged perpetrator. We also heard that victims of child sexual abuse were told by congregational elders not to discuss the abuse with others, and that if they tried to leave the organisation they were ‘shunned’ or ostracised from their religious community. Contributing factors in the Jehovah’s Witnesses The Jehovah’s Witness organisation addresses child sexual abuse in accordance with scriptural direction, relying on a literal interpretation of the Bible and 1st century principles to set practice, policy and procedure. These include the ‘two-witness’ rule, as noted, as well as the principle of ‘male headship’. This principle is that men hold positions of authority in congregations and headship in the family. Scripturally, only men can make decisions. Other scripture-based policies include the sanctions of reproval (a form of discipline that allows a perpetrator to remain in the congregation), disfellowshipping (exclusion or excommunication as a form of punishment for serious scriptural wrongdoing) and the practice of shunning (an instruction to the congregation not to associate with a disfellowshipped person). As long as the Jehovah’s Witness organisation continues to apply these practices in its response to allegations of child sexual abuse, it will remain an organisation that does not respond adequately to child sexual abuse and that fails to protect children. 76 Final Report: Preface and executive summary We recommend that the Jehovah’s Witness organisation abandon its application of the twowitness rule in cases involving child sexual abuse (Recommendation 16.27), revise its policies so that women are involved in processes relating to investigating and determining allegations of child sexual abuse (Recommendation 16.28), and no longer require its members to shun those who disassociate from the organisation in cases where the reason for disassociation is related to a person being a victim of child sexual abuse (Recommendation 16.29). Australian Christian Churches (ACC) and affiliated Pentecostal churches As at 31 May 2017, of the 4,029 survivors who told us during private sessions about child sexual abuse in religious institutions, 37 survivors told us about abuse in Pentecostal institutions. Of the victims we heard about, 67.6 per cent were female and 32.4 per cent were male. The average age of victims at the time of first abuse was 10.6 years. Of the 28 survivors who told us about the age of the person who sexually abused them, the vast majority told us about abuse by an adult and most of those said they were abused by a male adult. Of the 37 survivors, 29.7 per cent told us about perpetrators who were people in religious ministry and 27.0 per cent told us about perpetrators who were volunteers. We also heard about perpetrators who were residential care workers, foster carers or teachers. The response of the ACC and affiliated Pentecostal churches In our case study examining the ACC and affiliated Pentecostal churches, we considered institutional responses to child sexual abuse in a number of separate institutions: the Northside Christian College and Northside Christian Centre in Victoria, the Sunshine Coast Church in Queensland, and the Sydney Christian Life Centre and the Hills Christian Life Centre in New South Wales. We also considered responses of the ACC and Assemblies of God Australia. In each case we found that failures in institutional responses to allegations of child sexual abuse compromised the safety of children. Contributing factors in the ACC and affiliated Pentecostal churches It is apparent that a concern for institutional reputation affected responses to allegations of child sexual abuse by the ACC and its affiliated churches. The role of pastors in ACC-affiliated churches was also a contributing factor. The trust placed in pastors can contribute to their access to children. The lack of control over who is able to represent themselves as a pastor of the ACC is a weakness in the necessary safety controls that the ACC should have in place to protect children. In these institutions, the inadequate management of conflicts of interest was a further feature of the organisation’s poor institutional responses to child sexual abuse. Royal Commission into Institutional Responses to Child Sexual Abuse 77 Perhaps the most significant factor that affected institutional responses to allegations of child sexual abuse was the autonomous nature of Pentecostal churches, which meant that senior pastors had discretion about whether to adopt child protection policies, including in relation to the training, supervision and discipline of staff. Yeshiva Bondi and Yeshivah Melbourne As at 31 May 2017, of the 4,029 survivors who told us during private sessions about child sexual abuse in religious institutions, 25 survivors told us about abuse in Jewish institutions. Fifteen of those survivors told us about abuse in connection with Yeshiva Bondi or Yeshivah Melbourne, religious institutions forming part of the Chabad-Lubavitch movement of Orthodox Judaism. Those 15 survivors were all male, they all told us about sexual abuse by males, and most told us about sexual abuse by adult perpetrators. The average age of victims at the time of first abuse was 11.3 years. Most of the perpetrators we heard about were teachers. We also heard about perpetrators who were people in religious ministry (rabbis), ancillary staff at the institutions or volunteers. The responses of Yeshiva Bondi and Yeshivah Melbourne Our case study examining the responses of Yeshiva Bondi and Yeshivah Melbourne to allegations of child sexual abuse indicated that, when children or their parents made contemporaneous disclosures of sexual abuse to persons in positions of authority, they were disbelieved or ignored. Alleged perpetrators were either left in positions with continued access to children or were quietly removed from the institution. At least until the 2000s, those in leadership positions did not report allegations of child sexual abuse to police or other civil authorities. In some cases, the failure of those in positions of authority to act after receiving allegations of child sexual abuse allowed perpetrators to continue to sexually abuse children. In the cases we examined, the institutional responses to survivors of child sexual abuse who reported the abuse years after it occurred were dismal. Rather than supporting survivors or assisting them through the process of reporting allegations to police and during and after criminal proceedings, community leaders of Yeshiva Bondi and Yeshivah Melbourne made efforts to silence survivors and to condemn those who would not be silent. Members of the relevant communities shunned survivors and their families, which added to their suffering and may also have deterred other survivors from coming forward. Neither the Yeshiva Bondi nor the Yeshivah Melbourne community leaders provided direct, personal apologies to the survivors who did come forward, either for the child sexual abuse they suffered or for the manner in which the institutions handled their complaints. 78 Final Report: Preface and executive summary Contributing factors in Yeshiva Bondi and Yeshivah Melbourne At least until 2007, Yeshiva Bondi and Yeshivah Melbourne did not have adequate policies, procedures or practices for responding to complaints of child sexual abuse. In each community, the head rabbi was considered to be the spiritual head of the community. However, there was no overarching external rabbinical authority to which rabbis could be held accountable. A reverence for rabbinical leaders and a lack of oversight contributed to an absence of scrutiny of rabbis’ responses to allegations of child sexual abuse. The failure to recognise and deal transparently with perceived and actual conflicts of interest contributed to poor governance on the part of the Committee of Management at Yeshivah Melbourne. We found a marked absence of supportive leadership for survivors of child sexual abuse and their families in Yeshivah Melbourne. We also found that the leadership did not create an environment that was conducive to the communication of information about child sexual abuse. The manner in which some cultural beliefs and practices, including Jewish law concepts, were applied in Yeshiva Bondi and Yeshivah Melbourne contributed to inadequate institutional responses to child sexual abuse. For example, senior leaders at Yeshiva Bondi and Yeshivah Melbourne did not take action to dispel concern, controversy and confusion amongst the community over the application of the concepts of loshon horo (unlawful gossip) and mesirah (which prohibits a Jew from informing on another Jew or handing them over to a secular authority) to the reporting of child sexual abuse to civil authorities. During the institutional review hearing for these institutions, witnesses from Jewish representative bodies and representatives from Yeshiva Bondi and Yeshivah Melbourne unanimously confirmed that the concepts of loshon horo and mesirah have no application in the case of child sexual abuse. We recommend that all Jewish institutions’ complaint handling policies explicitly state that these concepts do not apply to the communication and reporting of allegations of child sexual abuse to police and other civil authorities (Recommendation 16.30). Creating child safe religious institutions We make a number of recommendations designed to enhance the safety of children in all religious institutions in Australia and to ensure that those institutions have the same child safe standards in place to protect all children. In recognition of the crucial role of religious institutions in the lives of many children, we recommend that all religious institutions implement the 10 Child Safe Standards identified by the Royal Commission (Recommendation 16.31). Royal Commission into Institutional Responses to Child Sexual Abuse 79 Religious organisations (that is, religious institutions that coordinate and organise together, such as the Catholic Church or Anglican Church) have a responsibility to drive consistent standards in their affiliated institutions. Religious organisations should adopt the Royal Commission’s 10 Child Safe Standards as nationally mandated standards for each of their affiliated institutions and drive a consistent approach to the implementation of those standards (Recommendations 16.32 and 16.33). Religious organisations are uniquely positioned to understand the nature of the services their affiliated institutions provide to children, the capacity of those institutions and the support they may need to provide child safe environments. Religious organisations should work closely with relevant state and territory oversight bodies to support the implementation of, and compliance with, the Child Safe Standards in each of their affiliated institutions (Recommendation 16.34). As part of this approach, we encourage religious organisations to implement a process to measure compliance with the Child Safe Standards in their affiliated institutions, and to make public the results of any internal audits of their affiliated institutions with respect to child safety. In addition, we make a number of recommendations, framed by the Child Safe Standards, that focus on the factors we identified as potentially contributing to child sexual abuse in religious institutions and to inadequate institutional responses to such abuse. In summary, religious institutions should: 80 • take steps to make their leaders more accountable, improve their governance structures and standards, and shift their culture to one that prioritises the best interests and safety of children • do more to encourage the constructive participation and empowerment of children and the involvement of family and community in matters relating to child safety in their institutions • ensure that people in religious and pastoral ministry are suitable for and supported in their roles through better screening, selection, training and management processes • improve their investigation of and responses to allegations of child sexual abuse, including removing those who perpetrate child sexual abuse from ministry and reporting complaints to civil authorities • improve their recordkeeping and information sharing practices to better prevent child sexual abuse and to better identify and respond to child sexual abuse when it does occur. Final Report: Preface and executive summary Schools There is near universal school enrolment for Australian children aged between six and 15 years. In 2016, almost 3.8 million children were enrolled in more than 9,400 Australian primary and secondary schools. Child sexual abuse in schools Almost one in three of all survivors we heard about in private sessions (2,186 survivors or 31.8 per cent) told us they were sexually abused in a school setting as a child. Of these survivors, 1,570 (71.8 per cent) told us about abuse in religious schools. Survivors told us about sexual abuse occurring in 1,069 schools, of which 75.8 per cent were non-government schools and 24.9 per cent were government schools. We heard of many instances of abuse ‘clusters’ in non-government schools, where a perpetrator or perpetrators would abuse multiple students over time. Particular institutional factors in non-governments schools may increase the risk of child sexual abuse and prevent disclosure and appropriate responses. They include concern for a school’s reputation and financial interests; hyper-masculine and hierarchical cultures; a sense of being part of a superior and privileged institution; the unquestioning selection of ex-students for employment; and long-serving principals in governance structures with little or no accountability in the area of student wellbeing and safety. Non-government schools are also more likely than government schools to be boarding schools. We heard from a disproportionate number of survivors who were sexually abused in a boarding school. Many of the survivors we heard from in private sessions told us about sexual abuse by people in religious ministry in religious schools, in particular Catholic schools. How schools failed We identified numerous ways that schools failed in their responsibility to keep children safe. Many of these failings are common to other types of institutions. However, certain features and risks of the school environment have influenced how these failures manifest in schools and magnify the impact of a failed response. Royal Commission into Institutional Responses to Child Sexual Abuse 81 The failure to act on disclosures and complaints of institutional child sexual abuse can lead to the further abuse of victims, other children being placed at risk of harm, and perpetrators not being held accountable for their criminal behaviour. We heard about poor leadership, governance and culture that prioritised protecting the school over the safety of children. Inadequate complaint handling processes, investigations and disciplinary action meant that school leaders and staff failed to act on complaints or meet their obligations to report matters to external authorities. Inadequate recordkeeping and sharing of information – including information about students who had been sexually abused or had exhibited harmful sexual behaviours – further increased the risk to children of sexual abuse in schools. The institutional culture of a school can be a strong factor in creating a risk of child sexual abuse. A school culture can have many harmful characteristics that allow opportunities for sexual abuse and make it difficult to detect abuse when it has occurred. Schools where children were sexually abused were often places where children also experienced physical and emotional abuse. Cultures where males are encouraged to exert power over others and behave in a sexually aggressive way may exist in boys’ schools. Boys in such hyper-masculine cultures may be more likely to exhibit harmful sexual behaviours, and this may be seen by others in the school as a healthy expression of masculinity. Homophobia is characteristic of such cultures and could be a barrier to boys disclosing sexual abuse by a male. Some schools have strong cultures of obedience to authority. This can create the conditions for child sexual abuse to occur. Poor governance processes are another factor contributing to the risk of child sexual abuse in schools, particularly in non-government schools. Good governance processes ensure that every school and its leaders understand their obligations to keep children safe, and are held accountable if they do not. Risk is created by complex and opaque governance, leadership that fails to notify school boards of child sexual abuse, inadequate recordkeeping and limited information sharing. A lack of children’s participation and empowerment can manifest in children being discouraged from complaining, children not being taught to identify sexual abuse and in power imbalances. It can contribute to failures to keep children safe in schools. Survivors of school-based sexual abuse often told us they felt unable to speak up about the abuse. A fear of not being believed was common, with many survivors citing the authority and perceived high standing of the perpetrator within their school as a reason for holding this belief. In some cases, we heard that disclosing sexual abuse led to further abuse, including other forms of abuse. 82 Final Report: Preface and executive summary Many survivors spoke of their fear of the impact of disclosure on their family and community. Victims, both as children and as adult survivors, are often very aware of the potential impact of any disclosure on their relationships and choose not to disclose, or to delay disclosure, out of concern for others. Students may also be reluctant to disclose abuse by their peers due to a culture of retribution against ‘dobbers’ that exists in some schools. Schools are responsible for the safety of all of their students. If they are not alert to the unique needs and vulnerabilities of children in some populations, they can place them at greater risk of sexual abuse or poor institutional responses. Aboriginal and Torres Strait Islander children and children from culturally and linguistically diverse backgrounds can experience specific impacts from racism and cultural isolation in schools. For children with disability, mainstream education programs on respectful sexual relationships are often inaccessible, making it more difficult for some of these children to identify and speak up about sexual abuse. Greater cultural safety in boarding schools and more effective supports for Aboriginal and Torres Strait Islander children transitioning to and from boarding schools are needed. How do we make schools safe? In Volume 6, Making institutions child safe we outline a number of prevention initiatives to build child safe communities and we recommend a national strategy for child sexual abuse prevention (Recommendation 6.2). The following initiatives delivered through schools would form part of this national strategy: • Prevention education for children delivered through preschool, school and other community institutional settings should aim to increase knowledge and build skills to help reduce the risks of sexual abuse or harm. This education should be integrated into existing school curricula and should make links with related education areas, such as respectful relationships and sexuality. It should be mandatory for all preschools and schools (Recommendation 6.2b). • Prevention education for parents delivered through day care, preschool, school and other institutional and community settings should aim to increase knowledge and build skills to help reduce the risks to children of sexual abuse (Recommendation 6.2c). All Australian schools should have the same child safe standards in place to protect all children. Inconsistent regulation between states and territories means that children can have more or less protection depending on where they attend school. Royal Commission into Institutional Responses to Child Sexual Abuse 83 All Australian schools must be registered in accordance with state or territory laws. We believe that the registration process should be the vehicle for implementing the Child Safe Standards in schools, by having relevant state and territory oversight bodies delegate responsibility to school registration authorities for monitoring and enforcing compliance with the Child Safe Standards in government and non-government schools (Recommendation 13.2). The risk of child sexual abuse is heightened in boarding schools compared to day schools. Students who board spend up to 24 hours a day at school, living on school grounds. They are away from their families and under the care of other adults, and they are often left unsupervised with peers and older students. Particular concerns have also been identified in relation to boarding hostels, largely for Aboriginal and Torres Strait Islander children, which are not operated as part of a school governance arrangement. Effective risk-based regulation means boarding schools should be monitored more closely and more frequently than day schools. We recommend that school registration authorities place particular emphasis on monitoring boarding schools to ensure they meet the Child Safe Standards (Recommendation 13.3). Independent oversight of institutional complaint handling can improve identification and reporting of child sexual abuse, improve the capacity of institutions to handle complaints and strengthen institutions’ accountability and transparency. In Australia, the only model for independent oversight of institutional responses to complaints of child abuse and neglect across multiple sectors is known as a ‘reportable conduct scheme’. These schemes oblige heads of institutions to notify an oversight body of allegations of reportable conduct involving any of the institution’s employees. Reportable conduct schemes provide for the oversight body to monitor the ways institutions investigate and handle such allegations. State and territory governments should establish nationally consistent legislative schemes that cover institutions providing education services for children, including government and nongovernment schools, TAFEs and other institutions registered for senior secondary education or training, courses for overseas students or student exchange programs (Recommendations 7.7 to 7.10). Teachers are critical to identifying and responding effectively to child sexual abuse in schools. Growing school and community expectations are placing greater demands on teachers to fulfil roles outside of traditional teaching. However, teachers and principals lack training, guidance and support for meeting these additional demands and preventing, identifying and responding to child sexual abuse. 84 Final Report: Preface and executive summary Before entering child-related occupations, including teacher roles, tertiary students should be provided with prevention education. This education should aim to increase awareness and understanding of the prevention of child sexual abuse and potentially harmful sexual behaviours in children (Recommendation 6.2). Online safety education should be a component of this prevention education (Recommendation 6.21). We also recommend that guidance on preventing and responding to child sexual abuse be issued under the national standard on maintaining student safety (Recommendation 13.7). State and territory governments should also consider options for requiring teachers to undertake pre-service and in-service training on mandatory reporting that reflects current legislative requirements. Teacher registration is a key regulatory mechanism for ensuring all teachers meet minimum quality standards, including suitability to work with children and be a teacher. We recommend that COAG’s Education Council consider strengthening teacher registration requirements to improve national consistency and improve the effectiveness of the requirements (Recommendation 13.8). Sport, recreation, arts, culture, community and hobby groups Australian children participate in a range of sport, recreation, arts, culture, community and hobby group activities during their lives. These activities are provided by a multitude of institutions and personnel in almost every community. Parents and volunteers join paid staff to provide opportunities for children during out-of-school hours. Child sexual abuse in sport and recreation In our private sessions, 408 survivors told us about child sexual abuse in sport and recreation settings. We identified 344 sport and recreation institutions across Australia where survivors told us the abuse occurred. The forms of child sexual abuse we heard about in sport and recreation included penetrative and non-penetrative contact, violations of privacy, exposure to sexual acts and material, sexual exploitation, and combinations of these. Although the types of sexual abuse children suffered in sport and recreation are similar to those in other institution types, grooming is a particular issue in this sector. A total of 131 survivors told us that grooming was a factor in the sexual abuse they experienced in sport and recreation settings. Royal Commission into Institutional Responses to Child Sexual Abuse 85 Common grooming strategies described were: • coaching relationships – perpetrators can exploit their power and authority over children through the private and exclusive coach or instructor relationship • inappropriate activity and adult material – many survivors of child sexual abuse in sport and recreation settings told us that alcohol and other enticements were used by perpetrators as a form of grooming • erosion of interpersonal boundaries – coaches can shift the interpersonal boundaries from the acceptable, for example, legitimate touching to correct a swim stroke, to the inappropriate • targeting vulnerability – research indicates that young athletes who are experiencing difficulties in their home life can be particular targets for perpetrators. We heard from many survivors who described family conflict, family violence or family break-up at the time of the abuse. Sport and recreation institutions are relatively permeable and open to broader cultural influences when compared to other institutions, such as schools. These characteristics can create risk factors for child sexual abuse including: • normalised violence and harassment – in hyper-competitive sporting contexts, violent and aggressive behaviours, such as bullying and hazing, can become normalised • normalised sexualised cultures – sexualised cultures can sometimes be a feature of dance environments, in part because of the role of television and social media • valuing adults over children – if sport and recreation institutions are driven by results and the pursuit of excellence, they may overlook potential harms in valuing coaches and instructors over the wellbeing of the child • level of involvement – children who have a high level of involvement in institutional settings – as can be the case for many sport and recreation activities that require frequent practice – may be at greater risk of sexual abuse than other children. The impacts of child sexual abuse in institutional contexts can be devastating. The particular impacts of child sexual abuse in sport and recreation contexts include: 86 • disengagement – Commissioners heard many examples where child sexual abuse had irreparably damaged the passion and enthusiasm that the child once had for the sport or recreation activity • isolation – research tells us that ‘high-level’ athletes are frequently isolated from peer groups outside of their activity; their lives can be insular and contact limited to those people who are within their sport community Final Report: Preface and executive summary • mental health and emotional health – commissioned research suggests that longterm mental health problems were the most common impacts of child sexual abuse. Emotional problems that did not reach a threshold of mental illness were also debilitating • interpersonal relationships – survivors of child sexual abuse in sport and recreation institutions told us about their difficulties with interpersonal relationships, including with intimate partners, family members and friends • families, carers and others – key supporters of the victim, such as parents, carers, siblings, partners and friends, can be devastated by both the abuse itself and the response of the institution. Institutional responses We heard of adults associated with a sport and recreation institution not reporting known or suspected child sexual abuse to an external government authority. The factors that contributed to this inaction are complex and varied. We heard that some sport and recreation personnel did not report abuse outside the institution because they were not legally obliged to do so. We learned that an institution’s culture, leadership and governance, personal relationships between a potential reporter and other members of a sport and recreation institution, and fears about the consequences of making a report, can also deter reporting. We heard of instances where complaints of child sexual abuse in a sport or recreation setting were poorly or inappropriately managed. Sometimes the complaint was not adequately investigated by the institution. Where an investigation was conducted, it was sometimes initiated after considerable delay and handled in an inappropriate and insensitive manner. We heard of instances where managers did not act immediately in response to complaints of abuse, failed to adequately assess and manage risks, and enabled the alleged perpetrator to have continued access to children. We heard that small sport and recreation institutions faced particular challenges in handling complaints of child sexual abuse. These challenges included limited resources and capacity to implement complaint handling procedures; closely connected groups of people, which has implications for confidentiality; or situations in which the subject of the complaint was also the owner of the institution. Royal Commission into Institutional Responses to Child Sexual Abuse 87 Creating child safe sport and recreation environments Sport and recreation institutions are important bodies in the lives of Australian children. They can play a significant role in the prevention and detection of child sexual abuse. Because of their large and broad audience and prominent place in the community, they present an opportunity to raise awareness about the importance of child protection and to promote child safety. We recommend that all sport and recreation institutions, including arts, culture, community and hobby groups, that engage with or provide services to children should implement the Child Safe Standards identified by the Royal Commission (Recommendation 14.1). Sport and recreation institutions should be supported in implementing the standards through independent oversight, which should focus on capacity building and support, and improved communication (Recommendation 14.4). To support implementation of the Child Safe Standards, and to improve institutional responding and reporting, we also recommend all sport and recreation institutions providing services to children have: • a clear, accessible and child-focused complaint handling policy and procedure that sets out how the institution should respond to complaints of child sexual abuse (Recommendation 7.7) • a code of conduct for staff, volunteers, parents and carers to identify and understand concerning or unacceptable behaviour, understand their responsibility to raise and report any concerns, and foster a culture that encourages reporting and handles complaints responsibly (Recommendation 7.8). Codes of conduct should be widely distributed, including by institutions and peak bodies. National leadership, coordination and capacity building can support the implementation of initiatives to better protect children. The broader sport and recreation sector does not have a representative committee or body to guide and advise on child safety. No single entity brings together the wide range of government and non-government institutions that provide sport, recreation, arts, culture, community and hobby services for children. We recommend that the National Office for Child Safety establish a child safety advisory committee for the sport and recreation sector with membership from government and nongovernment peak bodies to advise the national office on sector-specific child safety issues (Recommendation 14.2). The advisory committee would also provide opportunities for representatives to share knowledge, insights and experience to influence better child safety policy and practice. Sport and recreation institutions told us that they value online training and templates that are authoritative and developed by experts in child safety to build their understanding of how they can be child safe. 88 Final Report: Preface and executive summary Play by the Rules, an online information service, develops free materials to assist sporting clubs create safe environments for children. In its current form, the focus of Play by the Rules is limited to sports sector stakeholders in the government and not-for profit domains. The materials are not specifically tailored to the needs of small business and sole traders providing recreation, sports, arts, and various hobby or cultural activities. We recommend Play by the Rules be expanded and funded to develop resources – in partnership with the National Office for Child Safety – that are relevant to the broader sport and recreation sector (Recommendation 14.3). This would allow Play by the Rules to develop and adapt its resources to service a broader sector, and educate all sport and recreation institutions on how they can be child safe. We also believe there is scope for local governments to play a key role in assisting local clubs and institutions to comply with child safety requirements. Local governments should designate a child safety officer position from existing staff profiles to assist community-based institutions in their local area to become child safe, with support from governments at the national, state and territory levels. Child safety officers would have a particularly important role in the sport and recreation sector. They could perform several child safety functions, including developing messaging in sport and recreation venues to improve safety in change rooms, clubrooms and sports grounds. A child safety officer that is proximate to services and local industries would be especially important in regional and remote areas and could also coordinate other government services relevant to child safety. Contemporary detention environments Australia continues to have forms of detention within which children and young people can be held. These include youth detention centres, immigration detention centres, and secure psychiatric and disability residential services. Each of these settings are places where children are vulnerable and where the power imbalance between adult staff and children can be great. Connections to outside supports and family members are variable and can isolate the child and increase risks for children. While much of our work has been focused on historic institutional settings, contemporary detention settings pose present and future challenges for child safety and wellbeing. Research suggests that children are generally safer in community settings than in closed detention environments. The Australian Government and state and territory governments should only detain children as a last resort and for the shortest appropriate time. Where a government detains children, they should ensure the care and protection of those children. This includes by providing staff with resources and children in detention with access to services to meet their needs. Royal Commission into Institutional Responses to Child Sexual Abuse 89 Detention institutions and those involving detention and detention-like practices should implement our recommended Child Safe Standards. These standards can be implemented in a secure environment, and are readily adaptable to the new and emerging detention contexts and changes in existing detention environments. In concert with our Child Safe Standards, the National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework will play a significant role in protecting children with disability in detention. Given the Australian Government’s commitment to ratify the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) by December 2017, it should ensure that the ‘National Preventive Mechanism’ (as provided for in OPCAT) has the capacity and expertise to monitor, and recommend action on, child sexual abuse in detention environments. Youth detention Youth detention is intended to provide a secure environment for the detention and rehabilitation of children convicted or accused of criminal offending. State and territory governments owe children in youth detention a duty of care that includes protecting them against, and responding appropriately to, sexual abuse. Youth detention settings are places where children are extremely vulnerable and where the power imbalance between adult staff and children is great. Connections to outside supports and family members are variable. A lack of strong connections can isolate children and increase risks to them. Contemporary youth detention settings pose present and future challenges for children’s safety and wellbeing. The level of risk of sexual abuse to which children in youth detention are exposed is influenced by factors such as placement decisions (for example, placing older and younger children together), the institutional culture, the level of access children have to trusted adults, and the extent to which operational procedures and the physical environment provide opportunities for abuse. Risk is also influenced by the vulnerabilities of the detained children, many of whom are particularly vulnerable to sexual abuse due to experiences of trauma, family violence, abuse and/or neglect before entering youth detention. It is difficult to assess the adequacy of the responses of governments and institutions to child sexual abuse in youth detention due to the significant barriers to identifying and reporting the abuse and the limited information available about it. 90 Final Report: Preface and executive summary We acknowledge that youth detention systems in some jurisdictions are already undergoing significant change. We also acknowledge the particular safety and security concerns for children that can present in youth detention, particularly by older children also in detention. The practices of each state and territory vary and it is essential that all jurisdictions address the ongoing risk of child sexual abuse in youth detention institutions. In addition, it is important for jurisdictions to address the needs of victims of child sexual abuse in youth detention, including by providing and facilitating access to therapeutic treatment services. These services would help victims deal with the impacts of abuse and may help to reduce negative social outcomes, including anger, substance abuse and recidivism. State and territory governments should improve the safety of children in youth detention (Recommendations 15.3 to 15.10) by: • implementing our recommended Child Safe Standards in youth detention environments • reviewing the building and design features of youth detention facilities to identify and address elements that may place children at risk of being sexually abused in these environments and enhancing the use of technology to better monitor and prevent abusive behaviours • reviewing legislation, policy and procedures to ensure that children are detained in appropriate and safe placements (not, for example, in adult prisons), frameworks take account of the importance of children having access to trusted adults, and that best practice processes are in place for strip searches and other authorised physical contact between staff and children • considering further strategies to provide for the cultural safety of Aboriginal and Torres Strait Islander children in youth detention • providing staff in youth detention with appropriate training in relation to the needs and experiences of vulnerable children, including the barriers these children can face in disclosing sexual abuse, and training in trauma-informed care • improving access to therapeutic treatment for victims of child sexual abuse who are in youth detention, including by assessing their advocacy, support and therapeutic treatment needs and referring them to appropriate services, and ensuring they are linked to ongoing treatment when they leave detention • reviewing internal and external complaint handling systems for youth detention to ensure these systems are capable of dealing with complaints of child sexual abuse effectively • ensuring youth detention environments are overseen by an independent body with the appropriate visitation, complaint handling and reporting powers. Royal Commission into Institutional Responses to Child Sexual Abuse 91 Immigration detention While there is a lack of reliable data on child sexual abuse in immigration detention, recent inquiries provide insight into the nature and extent of such abuse. This includes the 2016 report of the Child Protection Panel (CPP) review, which was established by the federal Department of Immigration and Border Protection (the department). The CPP found that 27.6 per cent of a sample of 214 incidents of child abuse, neglect and exploitation in immigration detention reported between 1 January 2008 and 30 June 2015 involved child sexual abuse. Our commissioned research identified immigration detention as a specific institutional context with an elevated risk of child sexual abuse. ‘Held’ detention (in closed detention facilities) has unique features that combine to create this risk. These include a lack of privacy, the close proximity of children and adults in some settings, the clustering together of higher-risk groups (for example, unaccompanied minors) and aspects of organisational culture. Institutional risk is likely to be lower in community detention (outside of closed detention facilities, in the community) due to protective factors such as greater access to strong and positive social networks, stable housing, and health and some social services. Vulnerability to child sexual abuse is likely to be accentuated for many children in immigration detention. Reasons for this include that the children in immigration detention are likely to have previously experienced abuse and trauma, acquire trauma in the detention environment and experience high levels of social isolation. A further reason is the likelihood that the ability of parents to provide comfort and support to their children is compromised by the detention environment. As with youth detention, it is difficult to assess the adequacy of responses to child sexual abuse in immigration detention due to the significant barriers to identifying and reporting the abuse and the limited information available on it. Additionally, many immigration detention services are contracted to third parties and the level and adequacy of monitoring and supervision of such services, including responses to reports of abuse, is unclear. Even so, the CPP highlighted some concerns with institutional responses. These included the department’s lack of capability to effectively manage complex cases of child abuse, ineffective risk assessment systems, inadequate staff training in relation to child abuse, incomplete and unreliable records of child abuse incidents and inadequate information sharing resulting in inappropriate transfer and placement decisions. We acknowledge the recent adoption by the department of its Child Safeguarding Framework. However, institutions involved in the administration of immigration detention environments should implement our Child Safe Standards. Among the recommendations we have made is that the Australian Government establish a mechanism to regularly audit the implementation of the Child Safe Standards in immigration detention by staff, contractors and agents of the department. The outcomes of each audit should be reported publicly (Recommendation 15.12). 92 Final Report: Preface and executive summary Australian Defence Force We examined as one of our case studies the response of the federal Department of Defence (Defence) and the Australian Defence Force (ADF) to allegations of child sexual abuse at some of the institutions operated by the ADF. These were HMAS Leeuwin (Leeuwin), The Army Apprentice School Balcombe (Balcombe) and the Australian Defence Force Cadets (ADF Cadets). The case study also examined the approach taken by the federal Department of Veterans’ Affairs (DVA) and Defence in response to claims of compensation brought by survivors of child sexual abuse at Leeuwin and Balcombe. We concluded that, from the 1960s to 1972, the system of management at Leeuwin was ineffective in preventing and responding to child sexual abuse. The Royal Australian Navy failed in its duty of care to junior recruits, who were children. We also found that a failure to adequately address harmful bullying conduct and the culture of intimidation by older apprentices and staff represented a failure in the duty of care of the Army to provide a safe environment for junior apprentices at Balcombe. Further, during the 1970s and 1980s, the system of management in place at Balcombe was ineffective in preventing and responding to child sexual abuse. A failure in management allowed sexual abuse to occur. We found that, at the time of our public hearing, the approach taken by the DVA in assessing claims for child abuse at Leeuwin and Balcombe was incorrect in requiring assessors to reject any claim that was not supported by independently corroborative evidence. Following the hearing, Defence confirmed that the DVA had put into effect a new policy for determining claims for child abuse. We examined the experiences of a number of survivors of child sexual abuse within the ADF Cadets. The impacts of the abuse have been lifelong and severe. They include physical injury, mental illness, suicide attempts, alcohol abuse and broken relationships. We found that since at least 2000 the policy guides and training manuals of the ADF Cadets and the Australian Air Force Cadets were incorrect, incomplete and misleading in regards to the legal age of consent and the effect of special care provisions. The deficiencies in these documents increased the risk of child sexual abuse and had the potential for serious consequences for those who relied on them in good faith. These shortcomings were acknowledged by the ADF, which undertook reforms to better ensure a safe environment for participating children. Royal Commission into Institutional Responses to Child Sexual Abuse 93 Our earlier reports Early in the inquiry it became apparent that some issues should be reported on before the inquiry was complete. We were particularly concerned about Working With Children Checks, redress and civil litigation, and criminal justice. Consequently, we submitted to governments the Working With Children Checks (August 2015), Redress and civil litigation (September 2015) and Criminal justice (August 2017) reports. The recommendations in these earlier reports are final recommendations of the Royal Commission. They are reproduced in the recommendations listed at the end of this Executive Summary. Redress and civil litigation We recognised early in our work that many children had been subjected to sexual abuse in institutions. Because of the nature and impact of the abuse they suffered, many victims had not had the opportunity that many Australians can generally take for granted to seek compensation for injuries. Apart from changes to the law that may enable more victims to seek common law damages, we recognised a clear need to provide avenues for survivors to obtain effective redress. All Australian governments have recognised the need for redress. The Royal Commission’s Terms of Reference given to us by all governments required and authorised us to inquire into what institutions and governments should do to address or alleviate the impact of child sexual abuse, ‘including in particular in ensuring justice for victims through the provision of redress’. After detailed consultation, we reported that there was a need for a national redress scheme that would provide monetary compensation for victims together with an opportunity for a direct personal response by the institution in which the abuse occurred. We also recognised the critical need for the funding of counselling and psychological care for a survivor as needed throughout their lifetime. We also recognised that the civil justice system was failing many survivors. By reason of the lengthy time before many survivors were able to tell anyone of their childhood experience, conventional limitation periods were excluding the vast majority from ever establishing a common law claim. Further, a survivor faces considerable difficulty when abused by a member of an institution, which does not have a relevant corporate identity and cannot be sued, most commonly a church. There have also been difficulties in establishing liability because of the reluctance in Australian courts to impose vicarious liability or a non-delegable duty on an institution. 94 Final Report: Preface and executive summary The Commissioners consulted widely and considered developments in the law in the United Kingdom and Canada. In both those jurisdictions, the law has accepted that an institution will be vicariously liable for the criminal acts of its members or employees that cause harm to children, either because the act causing harm was so closely connected to an employee’s employment that it is fair and just to hold the employer liable, or because in the operation of its enterprise the employer created or significantly increased the risk of their employee causing harm. We concluded that the time had come when Australian parliaments should impose liability on some types of institutions for the deliberate criminal act of a member or employee as well as for the negligence of that member or employee. We concluded that it would be reasonable to impose liability on any residential facility for children, any school or day care facility, any religious organisation or any other facility operated for profit that provides services for children that involves the facility having care, supervision or control of children for a period of time. We did not suggest that liability should be extended to not-for-profit or volunteer institutions generally. We came to these conclusions only after careful and detailed consideration. We were influenced by the decisions of the courts in which strict liability has been recognised. If the protection of an individual’s property is an important priority of the common law, which it is, the protection of children should have at least the same priority. In our opinion the community today will expect that the care of children should attract the highest obligation of the law. We considered whether the changes to the law that we believed to be necessary should be left to the High Court to determine. Having regard to the changes that have occurred in the United Kingdom and the views expressed by some Australian judges, we believed it would be inevitable that Australian courts would ultimately recognise and impose the relevant liability. However, if the matter were left to the courts the liability would apply retrospectively, as is the situation in the United Kingdom, and we did not believe this would be appropriate. If the change is made by statute, the injustices that may arise if the change is left to the common law can be avoided. In particular, the burden that retrospective change would impose on insurers or institutions that will not have insured against this liability can be avoided. Regardless of whether a non-delegable duty is provided by legislation, we concluded that the onus of proof should be reversed. That is, institutions should be liable for child sexual abuse by their members or employees unless the institution proves it took reasonable steps to prevent abuse. We are also of the opinion that the reverse onus of proof should apply prospectively only and not retrospectively. We also recommended reforms in relation to limitation periods, identifying a proper defendant and model litigant approaches. Importantly, we recommended that institutions that receive, or expect to receive, civil claims for compensation concerning institutional child sexual abuse should adopt guidelines for responding that are designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses. Royal Commission into Institutional Responses to Child Sexual Abuse 95 Working With Children Checks In Australia, each state and territory has its own scheme for conducting background checks for people seeking to engage in child-related work. Commonly known as Working With Children Checks (WWCCs), these schemes help ensure that inappropriate people are not chosen to work or volunteer with children. They aim to do this by preventing people from working or volunteering with children if records indicate that they may pose an unacceptable level of risk. WWCCs have an important but limited role to play in preventing child sexual abuse in institutions. They will only contribute to keeping children safe if they are used in the context of broader child safe strategies, such as: appropriate leadership, governance and culture; quality recruitment, selection and screening; training; effective child protection policies and procedures; and child-friendly practices. The WWCC schemes presently in operation in the various parts of Australia are not as effective as they could be at contributing to children’s safety in organisations. We concluded that the current schemes should be strengthened to provide better levels of protection for children. Each state and territory has its own scheme, and each of the schemes operates independently of the others. Across jurisdictions, these schemes are inconsistent and complex, with unnecessary duplication. There is no integration of the schemes, and there is inadequate information sharing and monitoring of WWCC cardholders. These problems create a number of significant weaknesses. We concluded that a national approach to WWCCs is overdue. For too long, governments have favoured maintaining their own systems over working together to achieve a more nationally consistent approach. We recommended a national model for WWCCs be established by introducing consistent standards and establishing a centralised WWCC database to facilitate cross-border information sharing. This approach will improve the protection afforded to children by: 96 • creating a standardised approach so that key aspects of WWCC schemes are dealt with in the same way • allowing WWCCs to be portable across jurisdictions • assisting organisations and people working across borders to comply with the schemes by reducing their complexity and duplication • eliminating the opportunity for forum shopping, whereby potential perpetrators can work in locations with less rigorous checking or where access to adverse records is limited • improving information sharing so that there is continuous monitoring of WWCC cardholders’ national criminal history records and visibility of WWCC decisions across all jurisdictions. Final Report: Preface and executive summary We also made recommendations to: • require all religious leaders and officers or personnel of religious organisations to have WWCCs • deny people convicted of certain serious offences against children the right to appeal against adverse WWCC decisions, in some circumstances • stop some jurisdictions placing conditions on WWCCs (for example, supervision, role-based clearances) so that a person is either cleared or not cleared for child-related work. Although we are aware that some individuals and organisations question the efficacy of WWCC schemes, we share the view held by the majority of government and non-government stakeholders that WWCCs deliver unquestionable benefits to the safeguarding of children. Since providing our Working With Children Checks report to governments in July 2015, we are not aware that significant progress to implement our recommendations has been made. This is of great concern. A national approach to WWCCs is long overdue. It is the responsibility of all governments to work together to ensure it is implemented. Criminal justice The criminal justice system is recognised by many people as ineffective in responding to crimes of sexual violence, including child sexual abuse. Compared with other crimes, these crimes have lower reporting rates, higher attrition rates, lower charging and prosecution rates, fewer guilty pleas and fewer convictions. It is important that survivors of child sexual abuse in an institutional context are able to seek and obtain a criminal justice response to the abuse in order to: • punish the offender for their wrongdoing and recognise the harm done to the victim • identify and condemn the abuse as a crime against the victim and the broader community • emphasise that abuse is not a private matter between the perpetrator and the victim • increase awareness of the occurrence of child sexual abuse through the reporting of charges, prosecutions and convictions • deter further child sexual abuse, including through the increased risk of discovery and detection. Our work on criminal justice examined the system from the point of initial reporting and police investigation, through to the appropriate sentencing regime. Royal Commission into Institutional Responses to Child Sexual Abuse 97 The recommendations in our Criminal justice report address the means of improving police responses, including by encouraging reporting, improving police investigative interviewing techniques and training, and addressing particular issues in police responses to reports of historical child sexual abuse and reports of child sexual abuse made by people with disability (Criminal justice report, Recommendations 2 to 20). We also recommended legislation to amend particular child sexual abuse offences to make them more effective (Criminal justice report, Recommendations 21 to 31), including: • making the offences of persistent child sexual abuse/maintaining an unlawful sexual relationship reflect how complainants experience and remember repeated child sexual abuse • expanding grooming offences to include any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence, and to cover grooming of persons other than the child (such as parents and carers). The report contains recommendations for introducing the third party offences of failure to report and failure to protect, targeted at institutional child sexual abuse (Criminal justice report, Recommendations 32 to 36). We also suggested improvements in prosecution responses, including by: improving communication with victims and police about key prosecution decisions; developing standard material for complainants and other witnesses to better inform them about giving evidence; and introducing complaints mechanisms and internal audit processes for Directors of Public Prosecutions (Criminal justice report, Recommendations 37 to 43). An important and controversial area of the criminal law has been the admissibility of tendency and coincidence evidence and joint trials in child sexual abuse matters. Because we are satisfied that this evidence will often have a high probative value in child sexual abuse offences and the risk of unfair prejudice to the accused has been overstated, we have made a number of recommendations to allow greater admissibility of this evidence and to increase the number of joint trials (Criminal justice report, Recommendations 44 to 51). We have also made recommendations to improve special measures and courtroom experiences to help complainants and other witnesses in child sexual abuse prosecutions to give their best evidence – including by prerecording evidence in chief and cross-examination, recording evidence given during a trial for use in any subsequent trial or retrial, and introducing schemes by which a person may act as an intermediary for a witness in child sexual abuse trials (Criminal justice report, Recommendations 52 to 63). Other recommendations are concerned with jury directions, including the use of standard directions to provide educative information for juries (Criminal justice report, Recommendations 64 to 71). 98 Final Report: Preface and executive summary We have also made recommendations to reduce delays in criminal prosecutions for child sexual abuse offences and improve case management (Criminal justice report, Recommendations 72 and 73). As part of our inquiry, we considered the difficulties in sentencing child sexual abuse offenders, especially for ‘historical offences’. Our recommendations (Criminal justice report, Recommendations 74 to 78) include: • excluding good character as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending • requiring sentences for child sexual abuse offences to be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, subject to the maximum sentence that applied at the date of the offence • improving the information and support provided to victims in relation to making a victim impact statement. Beyond the Royal Commission I want justice for those of my friends who experienced the cruelty at the hands of the nuns and could no longer cope and committed suicide. I want justice for those children who simply disappeared. I want to scream that you cannot hide this any longer. I want people to remember that Australia has a dark past, that it happened here in Australia in our time. I want governments and churches to make sure that this never happens again.15 There have already been significant responses by some governments and some institutions to the problems revealed by the Royal Commission. Some recommendations made in our earlier reports – Working With Children Checks (August 2015), Redress and civil litigation (September 2015) and Criminal justice (August 2017) – have already been implemented. There can be no doubt that the work of the Royal Commission has heightened awareness of child sexual abuse in Australia and the need for effective governmental and institutional responses to the abuse. Private sessions for survivors, which included counselling and support, had a profound impact on those who took part. But for the Royal Commission, some survivors would never have disclosed their experience of child sexual abuse. For some, the Royal Commission has provided the opportunity to have the abuse they experienced recognised and seek effective assistance, including redress. Royal Commission into Institutional Responses to Child Sexual Abuse 99 The future impact of the Royal Commission will depend on the implementation of the recommendations made in this report, as well as those already made in our earlier reports. We have made recommendations about how implementation should be monitored and reported on (Recommendations 17.1 to 17.4). The work of the Royal Commission has advanced the state of research knowledge of child sexual abuse. This has been an area of limited research and there is a need for further research to prevent child sexual abuse and support responses to such abuse. Many survivors are concerned about honours or memorials for alleged perpetrators of child sexual abuse, including facilities dedicated to or named after perpetrators. To meet these concerns governments and institutions should review existing institutional honours, dedications and memorials to make sure they do not honour perpetrators of child sexual abuse. It is not uncommon for issues of national significance to be recognised with an appropriate memorial. The sexual abuse of children in institutions is an issue of national significance. In our view this should be recognised through a national memorial (Recommendation 17.6). The Royal Commission has now completed its task. Although we document in this Final Report the changes that have already occurred, further necessary and lasting change must come from a resolve by governments, institutions and the entire community to acknowledge the failures of the past and ensure they are not repeated. All children have a right to a safe and happy childhood. We all carry the responsibility to do what we can to provide it. We must not fail them. 100 Final Report: Preface and executive summary Endnotes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Four of these reports relate to private hearings. We recommended that these reports not be published. Name changed, private session, ‘Clayton Eric’. Names changed, private session, ‘Becky and Gretel’. Name changed, private session, ‘Meghan’. Name changed, private session, ‘Ella’. Exhibit 30-0002, ‘Statement of Joseph Marijancevic’, Case Study 30, STAT.0610.001.0001_R at 14:99–100. Name changed, private session, ‘Merle’. G Brandis, Attorney-General & C Porter, Minister for Social Services, Commonwealth redress scheme for survivors of institutional child sexual abuse, media release, Parliament House, Canberra, 4 November 2016. G Brandis, Attorney-General & C Porter, Minister for Social Services, Commonwealth redress scheme for survivors of institutional child sexual abuse, media release, Parliament House, Canberra, 9 May 2017. Name changed, written account, ‘Neil Jeffrey’. Senate Community Affairs References Committee, Forgotten Australians: A report on Australians who experienced institutional or out-of-home care as children, Commonwealth of Australia, Canberra, 2004, p xv. Name changed, private session, ‘Shayna’. Transcript of AYB, Case Study 26, 14 April 2015 at 7316:19–25. Names changed, private session, ‘Laurel and Liana’. Name changed, private session, ‘Kallie’. Royal Commission into Institutional Responses to Child Sexual Abuse 101 Structure of the Final Report The Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse consists of this executive summary and 17 volumes. To meet the needs of readers with specific interests, each volume can be read in isolation. The volumes contain cross references to enable readers to understand individual volumes in the context of the whole report. In the Final Report: The Executive Summary summarises the entire report and provides a full list of recommendations. Volume 1, Our inquiry introduces the Final Report, describing the establishment, scope and operations of the Royal Commission. Volume 2, Nature and cause details the nature and cause of child sexual abuse in institutional contexts. It also describes what is known about the extent of child sexual abuse and the limitations of existing studies. The volume discusses factors that affect the risk of child sexual abuse in institutions and the legal and political changes that have influenced how children have interacted with institutions over time. Volume 3, Impacts details the impacts of child sexual abuse in institutional contexts. The volume discusses how impacts can extend beyond survivors, to family members, friends, and whole communities. The volume also outlines the impacts of institutional responses to child sexual abuse. Volume 4, Identifying and disclosing child sexual abuse describes what we have learned about survivors’ experiences of disclosing child sexual abuse and about the factors that affect a victim’s decision whether to disclose, when to disclose and who to tell. Volume 5, Private sessions provides an analysis of survivors’ experiences of child sexual abuse as told to Commissioners during private sessions, structured around four key themes: experiences of abuse; circumstances at the time of the abuse; experiences of disclosure; and impact on wellbeing. It also describes the private sessions model, including how we adapted it to meet the needs of diverse and vulnerable groups. Volume 6, Making institutions child safe looks at the role community prevention could play in making communities and institutions child safe, the child safe standards that will make institutions safer for children, and how regulatory oversight and practice could be improved to facilitate the implementation of these standards in institutions. It also examines how to prevent and respond to online sexual abuse in institutions in order to create child safe online environments. 102 Final Report: Preface and executive summary Volume 7, Improving institutional responding and reporting examines the reporting of child sexual abuse to external government authorities by institutions and their staff and volunteers, and how institutions have responded to complaints of child sexual abuse. It outlines guidance for how institutions should handle complaints, and the need for independent oversight of complaint handling by institutions. Volume 8, Recordkeeping and information sharing examines records and recordkeeping by institutions that care for or provide services to children; and information sharing between institutions with responsibilities for children’s safety and wellbeing and between those institutions and relevant professionals. It makes recommendations to improve records and recordkeeping practices within institutions and information sharing between key agencies and institutions. Volume 9, Advocacy, support and therapeutic treatment services examines what we learned about the advocacy and support and therapeutic treatment service needs of victims and survivors of child sexual abuse in institutional contexts, and outlines recommendations for improving service systems to better respond to those needs and assist survivors towards recovery. Volume 10, Children with harmful sexual behaviours examines what we learned about institutional responses to children with harmful sexual behaviours. It discusses the nature and extent of these behaviours and the factors that may contribute to children sexually abusing other children. The volume then outlines how governments and institutions should improve their responses and makes recommendations about improving prevention and increasing the range of interventions available for children with harmful sexual behaviours. Volume 11, Historical residential institutions examines what we learned about survivors’ experiences of, and institutional responses to, child sexual abuse in residential institutions such as children’s homes, missions, reformatories and hospitals during the period spanning post-World War II to 1990. Volume 12, Contemporary out-of-home care examines what we learned about institutional responses to child sexual abuse in contemporary out-of-home care. The volume examines the nature and adequacy of institutional responses and draws out common failings. It makes recommendations to prevent child sexual abuse from occurring in out-of-home care and, where it does occur, to help ensure effective responses. Volume 13, Schools examines what we learned about institutional responses to child sexual abuse in schools. The volume examines the nature and adequacy of institutional responses and draws out the contributing factors to child sexual abuse in schools. It makes recommendations to prevent child sexual abuse from occurring in schools and, where it does occur, to help ensure effective responses to that abuse. Royal Commission into Institutional Responses to Child Sexual Abuse 103 Volume 14, Sport, recreation, arts, culture, community and hobby groups examines what we learned about institutional responses to child sexual abuse in sport and recreation contexts. The volume examines the nature and adequacy of institutional responses and draws out common failings. It makes recommendations to prevent child sexual abuse from occurring in sport and recreation and, where it does occur, to help ensure effective responses. Volume 15, Contemporary detention environments examines what we learned about institutional responses to child sexual abuse in contemporary detention environments, focusing on youth detention and immigration detention. It recognises that children are generally safer in community settings than in closed detention. It also makes recommendations to prevent child sexual abuse from occurring in detention environments and, where it does occur, to help ensure effective responses. Volume 16, Religious institutions examines what we learned about institutional responses to child sexual abuse in religious institutions. The volume discusses the nature and extent of child sexual abuse in religious institutions, the impacts of this abuse, and survivors’ experiences of disclosing it. The volume examines the nature and adequacy of institutional responses to child sexual abuse in religious institutions, and draws out common factors contributing to the abuse and common failings in institutional responses. It makes recommendations to prevent child sexual abuse from occurring in religious institutions and, where it does occur, to help ensure effective responses. Volume 17, Beyond the Royal Commission describes the impacts and legacy of the Royal Commission and discusses monitoring and reporting on the implementation of our recommendations. Unless otherwise indicated, this Final Report is based on laws, policies and information current as at 30 June 2017. Private sessions quantitative information is current as at 104 Final Report: Preface and executive summary FINAL REPORT RECOMMENDATIONS Royal Commission into Institutional Responses to Child Sexual Abuse 105 Volume 2, Nature and cause recommendations Measuring extent in the future Recommendation 2.1 The Australian Government should conduct and publish a nationally representative prevalence study on a regular basis to establish the extent of child maltreatment in institutional and non-institutional contexts in Australia. 106 Final Report: Preface and executive summary Volume 6, Making institutions child safe recommendations Creating child safe communities through prevention Recommendation 6.1 The Australian Government should establish a mechanism to oversee the development and implementation of a national strategy to prevent child sexual abuse. This work should be undertaken by the proposed National Office for Child Safety (see Recommendations 6.16 and 6.17) and be included in the National Framework for Child Safety (see Recommendation 6.15). Recommendation 6.2 The national strategy to prevent child sexual abuse should encompass the following complementary initiatives: a. social marketing campaigns to raise general community awareness and increase knowledge of child sexual abuse, to change problematic attitudes and behaviour relating to such abuse, and to promote and direct people to related prevention initiatives, information and help-seeking services b. prevention education delivered through preschool, school and other community institutional settings that aims to increase children’s knowledge of child sexual abuse and build practical skills to assist in strengthening self-protective skills and strategies. The education should be integrated into existing school curricula and link with related areas such as respectful relationships education and sexuality education. It should be mandatory for all preschools and schools c. prevention education for parents delivered through day care, preschool, school, sport and recreational settings, and other institutional and community settings. The education should aim to increase knowledge of child sexual abuse and its impacts, and build skills to help reduce the risks of child sexual abuse d. online safety education for children, delivered via schools. Ministers for education, through the Council of Australian Governments, should establish a nationally consistent curriculum for online safety education in schools. The Office of the eSafety Commissioner should be consulted on the design of the curriculum and contribute to the development of course content and approaches to delivery (see Recommendation 6.19) e. online safety education for parents and other community members to better support children’s safety online. Building on their current work, the Office of the eSafety Commissioner should oversee the delivery of this education nationally (see Recommendation 6.20) Royal Commission into Institutional Responses to Child Sexual Abuse 107 f. prevention education for tertiary students studying university, technical and further education, and vocational education and training courses before entering childrelated occupations. This should aim to increase awareness and understanding of the prevention of child sexual abuse and potentially harmful sexual behaviours in children g. information and help-seeking services to support people who are concerned they may be at risk of sexually abusing children. The design of these services should be informed by the Stop It Now! model implemented in Ireland and the United Kingdom h. information and help seeking services for parents and other members of the community concerned that: i. an adult they know may be at risk of perpetrating child sexual abuse ii. a child or young person they know may be at risk of sexual abuse or harm iii. a child they know may be displaying harmful sexual behaviours. Recommendation 6.3 The design and implementation of these initiatives should consider: a. aligning with and linking to national strategies for preventing violence against adults and children, and strategies for addressing other forms of child maltreatment b. tailoring and targeting initiatives to reach, engage and provide access to all communities, including children, Aboriginal and Torres Strait Islander communities, culturally and linguistically diverse communities, people with disability, and regional and remote communities c. involving children and young people in the strategic development, design, implementation and evaluation of initiatives d. using research and evaluation to: i. build the evidence base for using best practices to prevent child sexual abuse and harmful sexual behaviours in children ii. guide the development and refinement of interventions, including the piloting and testing of initiatives before they are implemented. 108 Final Report: Preface and executive summary What makes institutions safer for children Recommendation 6.4 All institutions should uphold the rights of the child. Consistent with Article 3 of the United Nations Convention on the Rights of the Child, all institutions should act with the best interests of the child as a primary consideration. In order to achieve this, institutions should implement the Child Safe Standards identified by the Royal Commission. Recommendation 6.5 The Child Safe Standards are: 1. Child safety is embedded in institutional leadership, governance and culture 2. Children participate in decisions affecting them and are taken seriously 3. Families and communities are informed and involved 4. Equity is upheld and diverse needs are taken into account 5. People working with children are suitable and supported 6. Processes to respond to complaints of child sexual abuse are child focused 7. Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training 8. Physical and online environments minimise the opportunity for abuse to occur 9. Implementation of the Child Safe Standards is continuously reviewed and improved 10. Policies and procedures document how the institution is child safe. Royal Commission into Institutional Responses to Child Sexual Abuse 109 Recommendation 6.6 Institutions should be guided by the following core components when implementing the Child Safe Standards: Standard 1: Child safety is embedded in institutional leadership, governance and culture a. The institution publicly commits to child safety and leaders champion a child safe culture. b. Child safety is a shared responsibility at all levels of the institution. c. Risk management strategies focus on preventing, identifying and mitigating risks to children. d. Staff and volunteers comply with a code of conduct that sets clear behavioural standards towards children. e. Staff and volunteers understand their obligations on information sharing and recordkeeping. Standard 2: Children participate in decisions affecting them and are taken seriously a. Children are able to express their views and are provided opportunities to participate in decisions that affect their lives. b. The importance of friendships is recognised and support from peers is encouraged, helping children feel safe and be less isolated. c. Children can access sexual abuse prevention programs and information. d. Staff and volunteers are attuned to signs of harm and facilitate child-friendly ways for children to communicate and raise their concerns. Standard 3: Families and communities are informed and involved a. Families have the primary responsibility for the upbringing and development of their child and participate in decisions affecting their child. b. The institution engages in open, two-way communication with families and communities about its child safety approach and relevant information is accessible. c. Families and communities have a say in the institution’s policies and practices. d. Families and communities are informed about the institution’s operations and governance. 110 Final Report: Preface and executive summary Standard 4: Equity is upheld and diverse needs are taken into account a. The institution actively anticipates children’s diverse circumstances and responds effectively to those with additional vulnerabilities. b. All children have access to information, support and complaints processes. c. The institution pays particular attention to the needs of Aboriginal and Torres Strait Islander children, children with disability, and children from culturally and linguistically diverse backgrounds. Standard 5: People working with children are suitable and supported a. Recruitment, including advertising and screening, emphasises child safety. b. Relevant staff and volunteers have Working With Children Checks. c. All staff and volunteers receive an appropriate induction and are aware of their child safety responsibilities, including reporting obligations. d. Supervision and people management have a child safety focus. Standard 6: Processes to respond to complaints of child sexual abuse are child focused a. The institution has a child-focused complaint handling system that is understood by children, staff, volunteers and families. b. The institution has an effective complaint handling policy and procedure which clearly outline roles and responsibilities, approaches to dealing with different types of complaints and obligations to act and report. c. Complaints are taken seriously, responded to promptly and thoroughly, and reporting, privacy and employment law obligations are met. Standard 7: Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training a. Relevant staff and volunteers receive training on the nature and indicators of child maltreatment, particularly institutional child sexual abuse. b. Staff and volunteers receive training on the institution’s child safe practices and child protection. c. Relevant staff and volunteers are supported to develop practical skills in protecting children and responding to disclosures. Royal Commission into Institutional Responses to Child Sexual Abuse 111 Standard 8: Physical and online environments minimise the opportunity for abuse to occur a. Risks in the online and physical environments are identified and mitigated without compromising a child’s right to privacy and healthy development. b. The online environment is used in accordance with the institution’s code of conduct and relevant policies. Standard 9: Implementation of the Child Safe Standards is continuously reviewed and improved a. The institution regularly reviews and improves child safe practices. b. The institution analyses complaints to identify causes and systemic failures to inform continuous improvement. Standard 10: Policies and procedures document how the institution is child safe a. Policies and procedures address all Child Safe Standards. b. Policies and procedures are accessible and easy to understand. c. Best practice models and stakeholder consultation inform the development of policies and procedures. d. Leaders champion and model compliance with policies and procedures. e. Staff understand and implement the policies and procedures. Improving child safe approaches Council of Australian Governments Recommendation 6.7 The national Child Safe Standards developed by the Royal Commission and listed at Recommendation 6.5 should be adopted as part of the new National Statement of Principles for Child Safe Organisations described by the Community Services Ministers’ Meeting in November 2016. The National Statement of Principles for Child Safe Organisations should be endorsed by the Council of Australian Governments. 112 Final Report: Preface and executive summary State and territory governments Recommendation 6.8 State and territory governments should require all institutions in their jurisdictions that engage in child-related work to meet the Child Safe Standards identified by the Royal Commission at Recommendation 6.5. Recommendation 6.9 Legislative requirements to comply with the Child Safe Standards should cover institutions that provide: a. accommodation and residential services for children, including overnight excursions or stays b. activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children c. childcare or childminding services d. child protection services, including out-of-home care e. activities or services where clubs and associations have a significant membership of, or involvement by, children f. coaching or tuition services for children g. commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions h. services for children with disability i. education services for children j. health services for children k. justice and detention services for children, including immigration detention facilities l. transport services for children, including school crossing services. Royal Commission into Institutional Responses to Child Sexual Abuse 113 Recommendation 6.10 State and territory governments should ensure that: a. an independent oversight body in each state and territory is responsible for monitoring and enforcing the Child Safe Standards. Where appropriate, this should be an existing body. b. the independent oversight body is able to delegate responsibility for monitoring and enforcing the Child Safe Standards to another state or territory government body, such as a sector regulator. c. regulators take a responsive and risk-based approach when monitoring compliance with the Child Safe Standards and, where possible, utilise existing regulatory frameworks to monitor and enforce the Child Safe Standards. Recommendation 6.11 Each independent state and territory oversight body should have the following additional functions: a. provide advice and information on the Child Safe Standards to institutions and the community b. collect, analyse and publish data on the child safe approach in that jurisdiction and provide that data to the proposed National Office for Child Safety c. partner with peak bodies, professional standards bodies and/or sector leaders to work with institutions to enhance the safety of children d. provide, promote or support education and training on the Child Safe Standards to build the capacity of institutions to be child safe e. coordinate ongoing information exchange between oversight bodies relating to institutions’ compliance with the Child Safe Standards. 114 Final Report: Preface and executive summary Local government Recommendation 6.12 With support from governments at the national, state and territory levels, local governments should designate child safety officer positions from existing staff profiles to carry out the following functions: a. developing child safe messages in local government venues, grounds and facilities b. assisting local institutions to access online child safe resources c. providing child safety information and support to local institutions on a needs basis d. supporting local institutions to work collaboratively with key services to ensure child safe approaches are culturally safe, disability aware and appropriate for children from diverse backgrounds. Australian Government Recommendation 6.13 The Australian Government should require all institutions that engage in child-related work for the Australian Government, including Commonwealth agencies, to meet the Child Safe Standards identified by the Royal Commission at Recommendation 6.5. Recommendation 6.14 The Australian Government should be responsible for the following functions: a. evaluate, publicly report on, and drive the continuous improvement of the implementation of the Child Safe Standards and their outcomes b. coordinate the direct input of children and young people into the evaluation and continuous improvement of the Child Safe Standards c. coordinate national capacity building and support initiatives and opportunities for collaboration between jurisdictions and institutions d. develop and promote national strategies to raise awareness and drive cultural change in institutions and the community to support child safety. Royal Commission into Institutional Responses to Child Sexual Abuse 115 National Framework for Child Safety Recommendation 6.15 The Australian Government should develop a new National Framework for Child Safety in collaboration with state and territory governments. The Framework should: a. commit governments to improving the safety of all children by implementing longterm child safety initiatives, with appropriate resources, and holding them to account b. be endorsed by the Council of Australian Governments and overseen by a joint ministerial body c. commence after the expiration of the current National Framework for Protecting Australia’s Children, no later than 2020 d. cover broader child safety issues, as well as specific initiatives to better prevent and respond to institutional child sexual abuse including initiatives recommended by the Royal Commission e. include links to other related policy frameworks. National Office for Child Safety Recommendation 6.16 The Australian Government should establish a National Office for Child Safety in the Department of the Prime Minister and Cabinet, to provide a response to the implementation of the Child Safe Standards nationally, and to develop and lead the proposed National Framework for Child Safety. The Australian Government should transition the National Office for Child Safety into an Australian Government statutory body within 18 months of this Royal Commission’s Final Report being tabled in the Australian Parliament. 116 Final Report: Preface and executive summary Recommendation 6.17 The National Office for Child Safety should report to Parliament and have the following functions: a. develop and lead the coordination of the proposed National Framework for Child Safety, including national coordination of the Child Safe Standards b. collaborate with state and territory governments to lead capacity building and continuous improvement of child safe initiatives through resource development, best practice material and evaluation c. promote the participation and empowerment of children and young people in the National Framework and child safe initiatives d. perform the Australian Government’s Child Safe Standards functions as set out at Recommendation 6.15 e. lead the community prevention initiatives as set out in Recommendation 6.2. Recommendation 6.18 The Australian Government should create a ministerial portfolio with responsibility for children’s policy issues, including the National Framework for Child Safety. Preventing and responding to online child sexual abuse in institutions Recommendation 6.19 Ministers for education, through the Council of Australian Governments, should establish a nationally consistent curriculum for online safety education in schools. The Office of the eSafety Commissioner should be consulted on the design of the curriculum and contribute to the development of course content and approaches to delivery. The curriculum should: a. be appropriately staged from Foundation year to Year 12 and be linked with related content areas to build behavioural skills as well as technical knowledge to support a positive and safe online culture b. involve children and young people in the design, delivery and piloting of new online safety education, and update content annually to reflect evolving technologies, online behaviours and evidence of international best practice approaches c. be tailored and delivered in ways that allow all Australian children and young people to reach, access and engage with online safety education, including vulnerable groups that may not access or engage with the school system. Royal Commission into Institutional Responses to Child Sexual Abuse 117 Recommendation 6.20 Building on its current work, the Office of the eSafety Commissioner should oversee the delivery of national online safety education aimed at parents and other community members to better support children’s safety online. These communications should aim to: a. keep the community up to date on emerging risks and opportunities for safeguarding children online b. build community understanding of responsibilities, legalities and the ethics of children’s interactions online c. encourage proactive responses from the community to make it ‘everybody’s business’ to intervene early, provide support or report issues when concerns for children’s safety online are raised d. increase public awareness of how to access advice and support when online incidents occur. Recommendation 6.21 Pre-service education and in-service staff training should be provided to support child-related institutions in creating safe online environments. The Office of the eSafety Commissioner should advise on and contribute to program design and content. These programs should be aimed at: a. tertiary students studying university, technical and further education, and vocational education and training courses, before entering child-related occupations; and could be provided as a component of a broader program of child sexual abuse prevention education (see Recommendation 6.2) b. staff and volunteers in schools and other child-related organisations, and could build on the existing web-based learning programs of the Office of the eSafety Commissioner. Recommendation 6.22 In partnership with the proposed National Office of Child Safety (see Recommendations 6.16 and 6.17), the Office of the eSafety Commissioner should oversee the development of an online safety framework and resources to support all schools in creating child safe online environments. This work should build on existing school-based e-safety frameworks and guidelines, drawing on Australian and international models. 118 Final Report: Preface and executive summary The school-based online safety framework and resources should be designed to: a. support schools in developing, implementing and reviewing their online codes of conduct, policies and procedures to help create an online culture that is safe for children b. guide schools in their response to specific online incidents, in coordination with other agencies. This should include guidance in complaint handling, understanding reporting requirements, supporting victims to minimise further harm, and preserving digital evidence to support criminal justice processes. Recommendation 6.23 State and territory education departments should consider introducing centralised mechanisms to support government and non-government schools when online incidents occur. This should result in appropriate levels of escalation and effective engagement with all relevant entities, such as the Office of the eSafety Commissioner, technical service providers and law enforcement. Consideration should be given to: a. adopting the promising model of the Queensland Department of Education and Training’s Cyber Safety and Reputation Management Unit, which provides advice and a centralised coordination function for schools, working in partnership with relevant entities to remove offensive online content and address other issues b. strengthening or re-establishing multi-stakeholder forums and case-management for effective joint responses involving all relevant agencies, such as police, education, health and child protection. Recommendation 6.24 In consultation with the eSafety Commissioner, police commissioners from states and territories and the Australian Federal Police should continue to ensure national capability for coordinated, best practice responses by law enforcement agencies to online child sexual abuse. This could include through: a. establishing regular meetings of the heads of cybersafety units in all Australian police departments to ensure a consistent capacity to respond to emerging incidents and share best practice approaches, tools and resources b. convening regular forums and conferences to bring together law enforcement, government, the technology industry, the community sector and other relevant stakeholders to discuss emerging issues, set agendas and identify solutions to online child sexual abuse and exploitation c. building capability across police departments, through in-service training for: i. frontline police officers to respond to public complaints relating to issues of online child sexual abuse or harmful sexual behaviours ii. police officers who liaise with young people in school and community settings. Royal Commission into Institutional Responses to Child Sexual Abuse 119 Volume 7, Improving institutional responding and reporting recommendations Reporting institutional child sexual abuse Recommendation 7.1 State and territory governments that do not have a mandatory reporter guide should introduce one and require its use by mandatory reporters. Recommendation 7.2 Institutions and state and territory governments should provide mandatory reporters with access to experts who can provide timely advice on child sexual abuse reporting obligations. Recommendation 7.3 State and territory governments should amend laws concerning mandatory reporting to child protection authorities to achieve national consistency in reporter groups. At a minimum, state and territory governments should also include the following groups of individuals as mandatory reporters in every jurisdiction: a. out-of-home care workers (excluding foster and kinship/relative carers) b. youth justice workers c. early childhood workers d. registered psychologists and school counsellors e. people in religious ministry. Recommendation 7.4 Laws concerning mandatory reporting to child protection authorities should not exempt persons in religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession. 120 Final Report: Preface and executive summary Recommendation 7.5 The Australian Government and state and territory governments should ensure that legislation provides comprehensive protection for individuals who make reports in good faith about child sexual abuse in institutional contexts. Such individuals should be protected from civil and criminal liability and from reprisals or other detrimental action as a result of making a complaint or report, including in relation to: a. mandatory and voluntary reports to child protection authorities under child protection legislation b. notifications concerning child abuse under the Health Practitioner Regulation National Law. Recommendation 7.6 State and territory governments should amend child protection legislation to provide adequate protection for individuals who make complaints or reports in good faith to any institution engaging in child-related work about: a. child sexual abuse within that institution or b. the response of that institution to child sexual abuse. Such individuals should be protected from civil and criminal liability and from reprisals or other detrimental action as a result of making a complaint or report. Improving institutional responses to complaints Recommendation 7.7 Consistent with Child Safe Standard 6: Processes to respond to complaints of child sexual abuse are child focused, institutions should have a clear, accessible and child-focused complaint handling policy and procedure that sets out how the institution should respond to complaints of child sexual abuse. The complaint handling policy and procedure should cover: a. making a complaint b. responding to a complaint c. investigating a complaint d. providing support and assistance e. achieving systemic improvements following a complaint. Royal Commission into Institutional Responses to Child Sexual Abuse 121 Recommendation 7.8 Consistent with Child Safe Standard 1: Child safety is embedded in institutional leadership, governance and culture, institutions should have a clear code of conduct that: a. outlines behaviours towards children that the institution considers unacceptable, including concerning conduct, misconduct or criminal conduct b. includes a specific requirement to report any concerns, breaches or suspected breaches of the code to a person responsible for handling complaints in the institution or to an external authority when required by law and/or the institution’s complaint handling policy c. outlines the protections available to individuals who make complaints or reports in good faith to any institution engaging in child-related work (see Recommendation 7.6 on reporter protections). Oversight of institutional complaint handling Recommendation 7.9 State and territory governments should establish nationally consistent legislative schemes (reportable conduct schemes), based on the approach adopted in New South Wales, which oblige heads of institutions to notify an oversight body of any reportable allegation, conduct or conviction involving any of the institution’s employees. Recommendation 7.10 Reportable conduct schemes should provide for: a. an independent oversight body b. obligatory reporting by heads of institutions c. a definition of reportable conduct that covers any sexual offence, or sexual misconduct, committed against, with, or in the presence of, a child d. a definition of reportable conduct that includes the historical conduct of a current employee e. a definition of employee that covers paid employees, volunteers and contractors f. protection for persons who make reports in good faith g. oversight body powers and functions that include: i. scrutinising institutional systems for preventing reportable conduct and for handling and responding to reportable allegations, or reportable convictions 122 Final Report: Preface and executive summary ii. monitoring the progress of investigations and the handling of complaints by institutions iii. conducting, on its own motion, investigations concerning any reportable conduct of which it has been notified or otherwise becomes aware iv. power to exempt any class or kind of conduct from being reportable conduct v. capacity building and practice development, through the provision of training, education and guidance to institutions vi. public reporting, including annual reporting on the operation of the scheme and trends in reports and investigations, and the power to make special reports to parliaments. Recommendation 7.11 State and territory governments should periodically review the operation of reportable conduct schemes, and in that review determine whether the schemes should cover additional institutions that exercise a high degree of responsibility for children and involve a heightened risk of child sexual abuse. Recommendation 7.12 Reportable conduct schemes should cover institutions that: • exercise a high degree of responsibility for children • engage in activities that involve a heightened risk of child sexual abuse, due to institutional characteristics, the nature of the activities involving children, or the additional vulnerability of the children the institution engages with. At a minimum, these should include institutions that provide: a. accommodation and residential services for children, including: i. housing or homelessness services that provide overnight beds for children and young people ii. providers of overnight camps b. activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children c. childcare services, including: i. approved education and care services under the Education and Care Services National Law ii. approved occasional care services Royal Commission into Institutional Responses to Child Sexual Abuse 123 d. child protection services and out-of-home care, including: i. child protection authorities and agencies ii. providers of foster care, kinship or relative care iii. providers of family group homes iv. providers of residential care e. disability services and supports for children with disability, including: i. disability service providers under state and territory legislation ii. registered providers of supports under the National Disability Insurance Scheme f. education services for children, including: i. government and non-government schools ii. TAFEs and other institutions registered to provide senior secondary education or training, courses for overseas students or student exchange programs g. health services for children, including: i. government health departments and agencies, and statutory corporations ii. public and private hospitals iii. providers of mental health and drug or alcohol treatment services that have inpatient beds for children and young people h. justice and detention services for children, including: i. youth detention centres ii. immigration detention facilities. 124 Final Report: Preface and executive summary Volume 8, Recordkeeping and information sharing recommendations Records and recordkeeping Minimum retention periods Recommendation 8.1 To allow for delayed disclosure of abuse by victims and take account of limitation periods for civil actions for child sexual abuse, institutions that engage in child-related work should retain, for at least 45 years, records relating to child sexual abuse that has occurred or is alleged to have occurred. Recommendation 8.2 The National Archives of Australia and state and territory public records authorities should ensure that records disposal schedules require that records relating to child sexual abuse that has occurred or is alleged to have occurred be retained for at least 45 years. Recommendation 8.3 The National Archives of Australia and state and territory public records authorities should provide guidance to government and non-government institutions on identifying records which, it is reasonable to expect, may become relevant to an actual or alleged incident of child sexual abuse; and on the retention and disposal of such records. Records and recordkeeping principles Recommendation 8.4 All institutions that engage in child-related work should implement the following principles for records and recordkeeping, to a level that responds to the risk of child sexual abuse occurring within the institution. Principle 1: Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture. Institutions that care for or provide services to children must keep the best interests of the child uppermost in all aspects of their conduct, including recordkeeping. It is in the best interest of children that institutions foster a culture in which the creation and management of accurate records are integral parts of the institution’s operations and governance. Royal Commission into Institutional Responses to Child Sexual Abuse 125 Principle 2: Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse. Institutions should ensure that records are created to document any identified incidents of grooming, inappropriate behaviour (including breaches of institutional codes of conduct) or child sexual abuse and all responses to such incidents. Records created by institutions should be clear, objective and thorough. They should be created at, or as close as possible to, the time the incidents occurred, and clearly show the author (whether individual or institutional) and the date created. Principle 3: Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained in an indexed, logical and secure manner. Associated records should be collocated or cross-referenced to ensure that people using those records are aware of all relevant information. Principle 4: Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy. Records relevant to child safety and wellbeing, including child sexual abuse, must only be destroyed in accordance with records disposal schedules or published institutional policies. Records relevant to child sexual abuse should be subject to minimum retention periods that allow for delayed disclosure of abuse by victims, and take account of limitation periods for civil actions for child sexual abuse. Principle 5: Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent. Individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted. Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated, and to seek review or appeal of decisions refusing access, amendment or annotation. 126 Final Report: Preface and executive summary Records of non-government schools Recommendation 8.5 State and territory governments should ensure that non-government schools operating in the state or territory are required to comply, at a minimum, with standards applicable to government schools in relation to the creation, maintenance and disposal of records relevant to child safety and wellbeing, including child sexual abuse. Improving information sharing across sectors Elements of a national information exchange scheme Recommendation 8.6 The Australian Government and state and territory governments should make nationally consistent legislative and administrative arrangements, in each jurisdiction, for a specified range of bodies (prescribed bodies) to share information related to the safety and wellbeing of children, including information relevant to child sexual abuse in institutional contexts (relevant information). These arrangements should be made to establish an information exchange scheme to operate in and across Australian jurisdictions. Recommendation 8.7 In establishing the information exchange scheme, the Australian Government and state and territory governments should develop a minimum of nationally consistent provisions to: a. enable direct exchange of relevant information between a range of prescribed bodies, including service providers, government and non-government agencies, law enforcement agencies, and regulatory and oversight bodies, which have responsibilities related to children’s safety and wellbeing b. permit prescribed bodies to provide relevant information to other prescribed bodies without a request, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts c. require prescribed bodies to share relevant information on request from other prescribed bodies, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts, subject to limited exceptions d. explicitly prioritise children’s safety and wellbeing and override laws that might otherwise prohibit or restrict disclosure of information to prevent, identify and respond to child sexual abuse in institutional contexts Royal Commission into Institutional Responses to Child Sexual Abuse 127 e. provide safeguards and other measures for oversight and accountability to prevent unauthorised sharing and improper use of information obtained under the information exchange scheme f. require prescribed bodies to provide adversely affected persons with an opportunity to respond to untested or unsubstantiated allegations, where such information is received under the information exchange scheme, prior to taking adverse action against such persons, except where to do so could place another person at risk of harm. Supporting implementation and operation Recommendation 8.8 The Australian Government, state and territory governments and prescribed bodies should work together to ensure that the implementation of our recommended information exchange scheme is supported with education, training and guidelines. Education, training and guidelines should promote understanding of, and confidence in, appropriate information sharing to better prevent, identify and respond to child sexual abuse in institutional contexts, including by addressing: a. impediments to information sharing due to limited understanding of applicable laws b. unauthorised sharing and improper use of information. Improving information sharing in key sectors Sharing information about teachers and students Recommendation 8.9 The Council of Australian Governments (COAG) Education Council should consider the need for nationally consistent state and territory legislative requirements about the types of information recorded on teacher registers. Types of information that the council should consider, with respect to a person’s registration and employment as a teacher, include: a. the person’s former names and aliases b. the details of former and current employers c. where relating to allegations or incidents of child sexual abuse: i. current and past disciplinary actions, such as conditions on, suspension of, and cancellation of registration ii. grounds for current and past disciplinary actions iii. pending investigations iv. findings or outcomes of investigations where allegations have been substantiated v. 128 resignation or dismissal from employment. Final Report: Preface and executive summary Recommendation 8.10 The COAG Education Council should consider the need for nationally consistent provisions in state and territory teacher registration laws providing that teacher registration authorities may, and/or must on request, make information on teacher registers available to: a. teacher registration authorities in other states and territories b. teachers’ employers. Recommendation 8.11 The COAG Education Council should consider the need for nationally consistent provisions a. in state and territory teacher registration laws or b. in administrative arrangements, based on legislative authorisation for information sharing under our recommended information exchange scheme providing that teacher registration authorities may or must notify teacher registration authorities in other states and territories and teachers’ employers of information they hold or receive about the following matters where they relate to allegations or incidents of child sexual abuse: a. disciplinary actions, such as conditions or restrictions on, suspension of, and cancellation of registration, including with notification of grounds b. investigations into conduct, or into allegations or complaints c. findings or outcomes of investigations d. resignation or dismissal from employment. Recommendation 8.12 In considering improvements to teacher registers and information sharing by registration authorities, the COAG Education Council should also consider what safeguards are necessary to protect teachers’ personal information. Recommendation 8.13 State and territory governments should ensure that policies provide for the exchange of a student’s information when they move to another school, where: a. the student may pose risks to other children due to their harmful sexual behaviours or may have educational or support needs due to their experiences of child sexual abuse and b. the new school needs this information to address the safety and wellbeing of the student or of other students at the school. State and territory governments should give consideration to basing these policies on our recommended information exchange scheme (Recommendations 8.6 to 8.8). Royal Commission into Institutional Responses to Child Sexual Abuse 129 Recommendation 8.14 State and territory governments should ensure that policies for the exchange of a student’s information when they move to another school: a. provide that the principal (or other authorised information sharer) at the student’s previous school is required to share information with the new school in the circumstances described in Recommendation 8.13 and b. apply to schools in government and non-government systems. Recommendation 8.15 State and territory governments should ensure that policies about the exchange of a student’s information (as in Recommendations 8.13 and 8.14) provide the following safeguards, in addition to any safeguards attached to our recommended information exchange scheme: a. information provided to the new school should be proportionate to its need for that information to assist it in meeting the student’s safety and wellbeing needs, and those of other students at the school b. information should be exchanged between principals, or other authorised information sharers, and disseminated to other staff members on a need-to-know basis. Recommendation 8.16 The COAG Education Council should review the Interstate Student Data Transfer Note and Protocol in the context of the implementation of our recommended information exchange scheme (Recommendations 8.6 to 8.8). Carers registers Recommendation 8.17 State and territory governments should introduce legislation to establish carers registers in their respective jurisdictions, with national consistency in relation to: a. the inclusion of the following carer types on the carers register: i. foster carers ii. relative/kinship carers iii. residential care staff b. the types of information which, at a minimum, should be recorded on the register c. the types of information which, at a minimum, must be made available to agencies or bodies with responsibility for assessing, authorising or supervising carers, or other responsibilities related to carer suitability and safety of children in out-of-home care. 130 Final Report: Preface and executive summary Recommendation 8.18 Carers registers should be maintained by state and territory child protection agencies or bodies with regulatory or oversight responsibility for out-of-home care in that jurisdiction. Recommendation 8.19 State and territory governments should consider the need for carers registers to include, at a minimum, the following information (register information) about, or related to, applicant or authorised carers, and persons residing on the same property as applicant/ authorised home-based carers (household members): a. lodgement or grant of applications for authorisation b. status of the minimum checks set out in Recommendation 12.6 as requirements for authorisation, indicating their outcomes as either satisfactory or unsatisfactory c. withdrawal or refusal of applications for authorisation in circumstances of concern (including in relation to child sexual abuse) d. cancellation or surrender of authorisation in circumstances of concern (including in relation to child sexual abuse) e. previous or current association with an out-of-home care agency, whether by application for authorisation, assessment, grant of authorisation, or supervision f. the date of reportable conduct allegations, and their status as either current, finalised with ongoing risk-related concerns, and/or requiring contact with the reportable conduct oversight body. Recommendation 8.20 State and territory governments should consider the need for legislative and administrative arrangements to require responsible agencies to: a. record register information in minimal detail b. record register information as a mandatory part of carer authorisation c. update register information about authorised carers. Royal Commission into Institutional Responses to Child Sexual Abuse 131 Recommendation 8.21 State and territory governments should consider the need for legislative and administrative arrangements to require responsible agencies: a. before they authorise or recommend authorisation of carers, to: i. undertake a check for relevant register information, and ii. seek further relevant information from another out-of-home care agency where register information indicates applicant carers, or their household members (in the case of prospective home-based carers) have a prior or current association with that other agency b. in the course of their assessment, authorisation, or supervision of carers, to: i. seek further relevant information from other agencies or bodies, where register information indicates they hold, or may hold, additional information relevant to carer suitability, including reportable conduct information. State and territory governments should give consideration to enabling agencies to seek further information for these purposes under our recommended information exchange scheme (Recommendations 8.6 to 8.8). Recommendation 8.22 State and territory governments should consider the need for effective mechanisms to enable agencies and bodies to obtain relevant information from registers in any state or territory holding such information. Consideration should be given to legislative and administrative arrangements, and digital platforms, which will enable: a. agencies responsible for assessing, authorising or supervising carers b. other agencies, including jurisdictional child protection agencies and regulatory and oversight bodies, with responsibilities related to the suitability of persons to be carers and the safety of children in out-of-home care to obtain relevant information from their own and other jurisdictions’ registers for the purpose of exercising their responsibilities and functions. Recommendation 8.23 In considering the legislative and administrative arrangements required for carers registers in their jurisdiction, state and territory governments should consider the need for guidelines and training to promote the proper use of carers registers for the protection of children in out-ofhome care. Consideration should also be given to the need for specific safeguards to prevent inappropriate use of register information. 132 Final Report: Preface and executive summary Volume 9, Advocacy, support and therapeutic treatment services recommendations Dedicated community support services for victims and survivors Recommendation 9.1 The Australian Government and state and territory governments should fund dedicated community support services for victims and survivors in each jurisdiction, to provide an integrated model of advocacy and support and counselling to children and adults who experienced childhood sexual abuse in institutional contexts. Funding and related agreements should require and enable these services to: a. be trauma-informed and have an understanding of institutional child sexual abuse b. be collaborative, available, accessible, acceptable and high quality c. use case management and brokerage to coordinate and meet service needs d. support and supervise peer-led support models. Recommendation 9.2 The Australian Government and state and territory governments should fund Aboriginal and Torres Strait Islander healing approaches as an ongoing, integral part of advocacy and support and therapeutic treatment service system responses for victims and survivors of child sexual abuse. These approaches should be evaluated in accordance with culturally appropriate methodologies, to contribute to evidence of best practice. Recommendation 9.3 The Australian Government and state and territory governments should fund support services for people with disability who have experienced sexual abuse in childhood as an ongoing, integral part of advocacy and support and therapeutic treatment service system responses for victims and survivors of child sexual abuse. National service to navigate legal processes Recommendation 9.4 The Australian Government should establish and fund a legal advice and referral service for victims and survivors of institutional child sexual abuse. The service should provide advice about accessing, amending and annotating records from institutions, and options for initiating police, civil litigation or redress processes as required. Support should include advice, referrals to other legal services for representation and general assistance for people to navigate the legal service system. Royal Commission into Institutional Responses to Child Sexual Abuse 133 Funding and related agreements should require and enable these services to be: a. trauma-informed and have an understanding of institutional child sexual abuse b. collaborative, available, accessible, acceptable and high quality. National telephone helpline and website Recommendation 9.5 The Australian Government should fund a national website and helpline as a gateway to accessible advice and information on childhood sexual abuse. This should provide information for victims and survivors, particularly victims and survivors of institutional child sexual abuse, the general public and practitioners about supporting children and adults who have experienced sexual abuse in childhood and available services. The gateway may be operated by an existing service with appropriate experience and should: a. be trauma-informed and have an understanding of institutional child sexual abuse b. be collaborative, available, accessible, acceptable and high quality c. provide telephone and online information and initial support for victims and survivors, including independent legal information and information about reporting to police d. provide assisted referrals to advocacy and support and therapeutic treatment services. Enhancing the capacity of specialist sexual assault services Recommendation 9.6 The Australian Government and state and territory governments should address existing specialist sexual assault service gaps by increasing funding for adult and child sexual assault services in each jurisdiction, to provide advocacy and support and specialist therapeutic treatment for victims and survivors, particularly victims and survivors of institutional child sexual abuse. Funding agreements should require and enable services to: a. b. c. d. be trauma-informed and have an understanding of institutional child sexual abuse be collaborative, available, accessible, acceptable and high quality use collaborative community development approaches provide staff with supervision and professional development. Recommendation 9.7 Primary Health Networks, within their role to commission joined up local primary care services, should support sexual assault services to work collaboratively with key services such as disability-specific services, Aboriginal and Torres Strait Islander services, culturally and linguistically diverse services, youth justice, aged care and child and youth services to better meet the needs of victims and survivors. 134 Final Report: Preface and executive summary Responsive mainstream services Recommendation 9.8 The Australian Government and state and territory government agencies responsible for the delivery of human services should ensure relevant policy frameworks and strategies recognise the needs of victims and survivors and the benefits of implementing traumainformed approaches. National leadership to reduce stigma, promote help-seeking and support good practice Recommendation 9.9 The Australian Government, in conjunction with state and territory governments, should establish and fund a national centre to raise awareness and understanding of the impacts of child sexual abuse, support help-seeking and guide best practice advocacy and support and therapeutic treatment. The national centre’s functions should be to: a. raise community awareness and promote destigmatising messages about the impacts of child sexual abuse b. increase practitioners’ knowledge and competence in responding to child and adult victims and survivors by translating knowledge about the impacts of child sexual abuse and the evidence on effective responses into practice and policy. This should include activities to: i. identify, translate and promote research in easily available and accessible formats for advocacy and support and therapeutic treatment practitioners ii. produce national training materials and best practice clinical resources iii. partner with training organisations to conduct training and workforce development programs iv. influence national tertiary curricula to incorporate child sexual abuse and trauma-informed care v. inform government policy making c. lead the development of better service models and interventions through coordinating a national research agenda and conducting high-quality program evaluation. The national centre should partner with survivors in all its work, valuing their knowledge and experience. Royal Commission into Institutional Responses to Child Sexual Abuse 135 Volume 10, Children with harmful sexual behaviours recommendations A framework for improving responses Recommendation 10.1 The Australian Government and state and territory governments should ensure the issue of children’s harmful sexual behaviours is included in the national strategy to prevent child sexual abuse that we have recommended (see Recommendations 6.1 to 6.3). Harmful sexual behaviours by children should be addressed through each of the following: a. primary prevention strategies to educate family, community members, carers and professionals (including mandatory reporters) about preventing harmful sexual behaviours b. secondary prevention strategies to ensure early intervention when harmful sexual behaviours are developing c. tertiary intervention strategies to address harmful sexual behaviours. Improving assessment and therapeutic intervention Recommendation 10.2 The Australian Government and state and territory governments should ensure timely expert assessment is available for individual children with problematic and harmful sexual behaviours, so they receive appropriate responses, including therapeutic interventions, which match their particular circumstances. Recommendation 10.3 The Australian Government and state and territory governments should adequately fund therapeutic interventions to meet the needs of all children with harmful sexual behaviours. These should be delivered through a network of specialist and generalist therapeutic services. Specialist services should also be adequately resourced to provide expert support to generalist services. 136 Final Report: Preface and executive summary Recommendation 10.4 State and territory governments should ensure that there are clear referral pathways for children with harmful sexual behaviours to access expert assessment and therapeutic intervention, regardless of whether the child is engaging voluntarily, on the advice of an institution or through their involvement with the child protection or criminal justice systems. Recommendation 10.5 Therapeutic intervention for children with harmful sexual behaviours should be based on the following principles: a. a contextual and systemic approach should be used b. family and carers should be involved c. safety should be established d. there should be accountability and responsibility for the harmful sexual behaviours e. there should be a focus on behaviour change f. developmentally and cognitively appropriate interventions should be used g. the care provided should be trauma-informed h. therapeutic services and interventions should be culturally safe i. therapeutic interventions should be accessible to all children with harmful sexual behaviours. Strengthening the workforce Recommendation 10.6 The Australian Government and state and territory governments should ensure that all services funded to provide therapeutic intervention for children with harmful sexual behaviours provide professional training and clinical supervision for their staff. Improving evaluation Recommendation 10.7 The Australian Government and state and territory governments should fund and support evaluation of services providing therapeutic interventions for problematic and harmful sexual behaviours by children. Royal Commission into Institutional Responses to Child Sexual Abuse 137 Volume 12, Contemporary out-of-home care recommendations Data collection and reporting Recommendation 12.1 The Australian Government and state and territory governments should develop nationally agreed key terms and definitions in relation to child sexual abuse for the purpose of data collection and reporting by the Australian Institute of Health and Welfare (AIHW) and the Productivity Commission. Recommendation 12.2 The Australian Government and state and territory governments should prioritise enhancements to the Child Protection National Minimum Data Set to include: a. data identifying children with disability, children from culturally and linguistically diverse backgrounds and Aboriginal and Torres Strait Islander children b. the number of children who were the subject of a substantiated report of sexual abuse while in out-of-home care c. the demographics of those children d. the type of out-of-home care placement in which the abuse occurred e. information about when the abuse occurred f. information about who perpetrated the abuse, including their age and their relationship to the victim, if known. Recommendation 12.3 State and territory governments should agree on reporting definitions and data requirements to enable reporting in the Report on government services on outcome indicators for ‘improved health and wellbeing of the child’, ‘safe return home’ and ‘permanent care’. 138 Final Report: Preface and executive summary Accreditation of out-of-home care service providers Recommendation 12.4 Each state and territory government should revise existing mandatory accreditation schemes to: a. incorporate compliance with the Child Safe Standards identified by the Royal Commission b. extend accreditation requirements to both government and non-government out-of-home care service providers. Recommendation 12.5 In each state and territory, an existing statutory body or office that is independent of the relevant child protection agency and out-of-home care service providers, for example a children’s guardian, should have responsibility for: a. receiving, assessing and processing applications for accreditation of out-of-home care service providers b. conducting audits of accredited out-of-home care service providers to ensure ongoing compliance with accreditation standards and conditions. Carer authorisation Recommendation 12.6 In addition to a National Police Check, Working With Children Check and referee checks, authorisation of all foster and kinship/relative carers and all residential care staff should include: a. community services checks of the prospective carer and any adult household members of home-based carers b. documented risk management plans to address any risks identified through community services checks c. at least annual review of risk management plans as part of carer reviews and more frequently as required. Recommendation 12.7 All out-of-home care service providers should conduct annual reviews of authorised carers that include interviews with all children in the placement with the carer under review, in the absence of the carer. Royal Commission into Institutional Responses to Child Sexual Abuse 139 Recommendation 12.8 Each state and territory government should adopt a model of assessment appropriately tailored for kinship/relative care. This type of assessment should be designed to: a. better identify the strengths as well as the support and training needs of kinship/relative carers b. ensure holistic approaches to supporting placements that are culturally safe c. include appropriately resourced support plans. Child sexual abuse education strategy Recommendation 12.9 All state and territory governments should collaborate in the development of a sexual abuse prevention education strategy, including online safety, for children in out-of-home care that includes: a. input from children in out-of-home care and care-leavers b. comprehensive, age-appropriate and culture-appropriate education about sexuality and healthy relationships that is tailored to the needs of children in out-of-home care c. resources tailored for children in care, for foster and kinship/relative carers, for residential care staff and for caseworkers d. resources that can be adapted to the individual needs of children with disability and their carers. Creating a culture that supports disclosure and identification of child sexual abuse Recommendation 12.10 State and territory governments, in collaboration with out-of-home care service providers and peak bodies, should develop resources to assist service providers to: a. provide appropriate support and mechanisms for children in out-of-home care to communicate, either verbally or through behaviour, their views, concerns and complaints b. provide appropriate training and support to carers and caseworkers to ensure they hear and respond to children in out-of-home care, including ensuring children are involved in decisions about their lives c. regularly consult with the children in their care as part of continuous improvement processes. 140 Final Report: Preface and executive summary Strengthening the capacity of carers, staff and caseworkers to support children Recommendation 12.11 State and territory governments and out-of-home care service providers should ensure that training for foster and relative/kinship carers, residential care staff and child protection workers includes an understanding of trauma and abuse, the impact on children and the principles of trauma-informed care to assist them to meet the needs of children in out-of-home care, including children with harmful sexual behaviours. Identifying, assessing and supporting children with harmful sexual behaviours Recommendation 12.12 When placing a child in out-of-home care, state and territory governments and out-of-home care service providers should take the following measures to support children with harmful sexual behaviours: a. undertake professional assessments of the child with harmful sexual behaviours, including identifying their needs and appropriate supports and interventions to ensure their safety b. establish case management and a package of support services c. undertake careful placement matching that includes: i. providing sufficient relevant information to the potential carer/s and residential care staff to ensure they are equipped to support the child, and additional training as necessary ii. rigorously assessing potential threats to the safety of other children, including the child’s siblings, in the placement. Recommendation 12.13 State and territory governments and out-of-home care service providers should provide advice, guidelines and ongoing professional development for all foster and kinship/relative carers and residential care staff about preventing and responding to the harmful sexual behaviours of some children in out-of-home care. Royal Commission into Institutional Responses to Child Sexual Abuse 141 Preventing and responding to child sexual exploitation Recommendation 12.14 All state and territory governments should develop and implement coordinated and multi-disciplinary strategies to protect children in residential care by: a. identifying and disrupting activities that indicate risk of sexual exploitation b. supporting agencies to engage with children in ways that encourage them to assist in the investigation and prosecution of sexual exploitation offences. Recommendation 12.15 Child protection departments in all states and territories should adopt a nationally consistent definition for child sexual exploitation to enable the collection and reporting of data on sexual exploitation of children in out-of-home care as a form of child sexual abuse. Increasing the stability of placements Recommendation 12.16 All institutions that provide out-of-home care should develop strategies that increase the likelihood of safe and stable placements for children in care. Such strategies should include: a. improved processes for ‘matching’ children with carers and other children in a placement, including in residential care b. the provision of necessary information to carers about a child, prior to and during their placement, to enable carers to properly support the child c. support and training for carers to deal with the different developmental needs of children as well as managing difficult situations and challenging behaviour. Supporting kinship/relative care placements Recommendation 12.17 Each state and territory government should ensure that: a. the financial support and training provided to kinship/relative carers is equivalent to that provided to foster carers b. the need for any additional supports are identified during kinship/relative carer assessments and are funded c. additional casework support is provided to maintain birth family relationships. 142 Final Report: Preface and executive summary Residential care Recommendation 12.18 The key focus of residential care for children should be based on an intensive therapeutic model of care framework designed to meet the complex needs of children with histories of abuse and trauma. Recommendation 12.19 All residential care staff should be provided with regular training and professional supervision by appropriately qualified clinicians. Aboriginal and Torres Strait Islander children Recommendation 12.20 Each state and territory government, in consultation with appropriate Aboriginal and Torres Strait Islander organisations and community representatives, should develop and implement plans to: a. fully implement the Aboriginal and Torres Strait Islander Child Placement Principle b. improve community and child protection sector understanding of the intent and scope of the principle c. develop outcome measures that allow quantification and reporting on the extent of the full application of the principle, and evaluation of its impact on child safety and the reunification of Aboriginal and Torres Strait Islander children with their families d. invest in community capacity building as a recognised part of kinship care, in addition to supporting individual carers, in recognition of the role of Aboriginal and Torres Strait Islander communities in bringing up children. Royal Commission into Institutional Responses to Child Sexual Abuse 143 Children with disability Recommendation 12.21 Each state and territory government should ensure: a. the adequate assessment of all children with disability entering out-of-home care b. the availability and provision of therapeutic support c. support for disability-related needs d. the development and implementation of care plans that identify specific risk-management and safety strategies for individual children, including the identification of trusted and safe adults in the child’s life. Care-leavers Recommendation 12.22 State and territory governments should ensure that the supports provided to assist all care-leavers to safely and successfully transition to independent living include: a. strategies to assist care-leavers who disclose that they were sexually abused while in out-of-home care to access general post-care supports b. the development of targeted supports to address the specific needs of sexual abuse survivors, such as help in accessing therapeutic treatment to deal with impacts of abuse, and for these supports to be accessible until at least the age of 25. 144 Final Report: Preface and executive summary Volume 13, Schools recommendations Child Safe Standards Recommendation 13.1 All schools should implement the Child Safe Standards identified by the Royal Commission. Recommendation 13.2 State and territory independent oversight authorities responsible for implementing the Child Safe Standards (see Recommendation 6.10) should delegate to school registration authorities the responsibility for monitoring and enforcing the Child Safe Standards in government and non-government schools. Recommendation 13.3 School registration authorities should place particular emphasis on monitoring government and non-government boarding schools to ensure they meet the Child Safe Standards. Policy guidance and practical support should be provided to all boarding schools to meet these standards, including advice on complaint handling. Supporting boarding schools Recommendation 13.4 The Australian Government and state and territory governments should ensure that needs-based funding arrangements for Aboriginal and Torres Strait Islander boarding students are sufficient for schools and hostels to create child safe environments. Recommendation 13.5 Boarding hostels for children and young people should implement the Child Safe Standards identified by the Royal Commission. State and territory independent oversight authorities should monitor and enforce the Child Safe Standards in these institutions. Royal Commission into Institutional Responses to Child Sexual Abuse 145 Responding to complaints relating to children with harmful sexual behaviours Recommendation 13.6 Consistent with the Child Safe Standards, complaint handling policies for schools (see Recommendation 7.7) should include effective policies and procedures for managing complaints about children with harmful sexual behaviours. Guidance for teachers and principals Recommendation 13.7 State and territory governments should provide nationally consistent and easily accessible guidance to teachers and principals on preventing and responding to child sexual abuse in all government and non-government schools. Teacher registration Recommendation 13.8 The Council of Australian Governments (COAG) should consider strengthening teacher registration requirements to better protect children from sexual abuse in schools. In particular, COAG should review minimum national requirements for assessing the suitability of teachers, and conducting disciplinary investigations. 146 Final Report: Preface and executive summary Volume 14, Sport, recreation, arts, culture, community and hobby groups recommendations Child Safe Standards Recommendation 14.1 All sport and recreation institutions, including arts, culture, community and hobby groups, that engage with or provide services to children should implement the Child Safe Standards identified by the Royal Commission. A representative voice for the sector Recommendation 14.2 The National Office for Child Safety should establish a child safety advisory committee for the sport and recreation sector with membership from government and non-government peak bodies to advise the national office on sector-specific child safety issues. Expanding Play by the Rules Recommendation 14.3 The education and information website known as Play by the Rules should be expanded and funded to develop resources – in partnership with the National Office for Child Safety – that are relevant to the broader sport and recreation sector. Improving communication Recommendation 14.4 The independent state and territory oversight bodies that implement the Child Safe Standards should establish a free email subscription function for the sport and recreation sector so that all providers of these services to children can subscribe to receive relevant child safe information and links to resources. Royal Commission into Institutional Responses to Child Sexual Abuse 147 Volume 15, Contemporary detention environments recommendations Contemporary detention environments Recommendation 15.1 All institutions engaged in child-related work, including detention institutions and those involving detention and detention-like practices, should implement the Child Safe Standards identified by the Royal Commission. Recommendation 15.2 Given the Australian Government’s commitment to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the National Preventive Mechanism(s) should be provided with the expertise to consider and make recommendations relating to preventing and responding to child sexual abuse as part of regularly examining the treatment of persons deprived of their liberty in places of detention. Youth detention Creating a safer physical environment Recommendation 15.3 Youth justice agencies in each state and territory should review the building and design features of youth detention to identify and address elements that may place children at risk. This should include consideration of how to most effectively use technology, such as closed-circuit television (CCTV) cameras and body-worn cameras, to capture interactions between children and between staff and children without unduly infringing children’s privacy. Recommendation 15.4 As part of efforts to mitigate risks of child sexual abuse in the physical environment of youth detention, state and territory governments should review legislation, policy and procedures to ensure: a. appropriate and safe placements of children in youth detention, including a risk assessment process before placement decisions that identifies if a child may be vulnerable to child sexual abuse or if a child is displaying harmful sexual behaviours b. children are not placed in adult prisons 148 Final Report: Preface and executive summary c. frameworks take into account the importance of children having access to trusted adults, including family, friends and community, in the prevention and disclosure of child sexual abuse and provide for maximum contact between children and trusted adults through visitation, and use of the telephone and audio-visual technology d. best practice processes are in place for strip searches and other authorised physical contact between staff and children, including sufficient safeguards to protect children such as: i. adequate communication between staff and the child before, during and after a search is conducted or other physical contact occurs ii. clear protocols detailing when such practices are permitted and how they should be performed. The key elements of these protocols should be provided to children in an accessible format iii. staff training that highlights the potential for strip searching to re-traumatise children who have been sexually abused and how the misuse of search powers can lead to sexual humiliation or abuse. State and territory governments should consider implementing strategies for detecting contraband, such as risk assessments or body scanners, to minimise the need for strip searching children. Responding to children’s different needs Recommendation 15.5 State and territory governments should consider further strategies that provide for the cultural safety of Aboriginal and Torres Strait Islander children in youth detention including: a. recruiting and developing Aboriginal and Torres Strait Islander staff to work at all levels of the youth justice system, including in key roles in complaint handling systems b. providing access to interpreters, particularly with respect to induction and education programs, and accessing internal and external complaint handling systems c. ensuring that all youth detention facilities have culturally appropriate policies and procedures that facilitate connection with family, community and culture, and reflect an understanding of, and respect for, cultural practices in different clan groups d. employing, training and professionally developing culturally competent staff who understand the particular needs and experiences of Aboriginal and Torres Strait Islander children, including the specific barriers that Aboriginal and Torres Strait Islander children face in disclosing sexual abuse. Royal Commission into Institutional Responses to Child Sexual Abuse 149 Recommendation 15.6 All staff should receive appropriate training on the needs and experiences of children with disability, mental health problems, and alcohol or other drug problems, and children from culturally and linguistically diverse backgrounds that highlights the barriers these children may face in disclosing sexual abuse. Recommendation 15.7 State and territory governments should improve access to therapeutic treatment for survivors of child sexual abuse who are in youth detention, including by assessing their advocacy, support and therapeutic treatment needs and referring them to appropriate services, and ensure they are linked to ongoing treatment when they leave detention. Support and training for staff Recommendation 15.8 State and territory governments should ensure that all staff in youth detention are provided with training and ongoing professional development in trauma-informed care to assist them to meet the needs of children in youth detention, including children at risk of sexual abuse and children with harmful sexual behaviours. Improving complaint handling systems Recommendation 15.9 State and territory governments should review the current internal and external complaint handling systems concerning youth detention to ensure they are capable of effectively dealing with complaints of child sexual abuse, including so that: a. children can easily access child-appropriate information about internal complaint processes and external oversight bodies that may receive or refer children’s complaints, such as visitor’s schemes, ombudsmen, inspectors of custodial services, and children’s commissioners or guardians b. children have confidential and unrestricted access to external oversight bodies c. staff involved in managing complaints both internally and externally include Aboriginal and Torres Strait Islander peoples and professionals qualified to provide trauma-informed care d. complaint handling systems are accessible for children with literacy difficulties or who speak English as a second language e. children are regularly consulted about the effectiveness of complaint handling systems and systems are continually improved. 150 Final Report: Preface and executive summary Independent oversight of youth detention Recommendation 15.10 State and territory governments should ensure they have an independent oversight body with the appropriate visitation, complaint handling and reporting powers, to provide oversight of youth detention. This could include an appropriately funded and independent Inspector of Custodial Services or similar body. New and existing bodies should have expertise in child-trauma, and the prevention and identification of child sexual abuse. Immigration detention The Child Protection Panel recommendations Recommendation 15.11 The Department of Immigration and Border Protection should publicly report within 12 months on how it has implemented the Child Protection Panel’s recommendations. Implementing the Child Safe Standards in immigration detention Recommendation 15.12 a. The Australian Government should establish a mechanism to regularly audit the implementation of the Child Safe Standards in immigration detention by staff, contractors and agents of the Department of Immigration and Border Protection. The outcomes of each audit should be publicly reported. b. The Department of Immigration and Border Protection should contractually require its service providers to comply with the Child Safe Standards identified by the Royal Commission, as applied to immigration detention. Royal Commission into Institutional Responses to Child Sexual Abuse 151 Therapeutic support for victims in immigration detention Recommendation 15.13 The Department of Immigration and Border Protection should identify the scope and nature of the need for support services for victims in immigration detention. The Department of Immigration and Border Protection should ensure that appropriate therapeutic and other specialist and support services are funded to meet the identified needs of victims in immigration detention and ensure they are linked to ongoing treatment when they leave detention. Training and supporting department and service provider staff Recommendation 15.14 The Department of Immigration and Border Protection should designate appropriately qualified child safety officers for each place in which children are detained. These officers should assist and build the capacity of staff and service providers at the local level to implement the Child Safe Standards. Preventive monitoring and oversight Recommendation 15.15 The Department of Immigration and Border Protection should implement an independent visitors program in immigration detention. 152 Final Report: Preface and executive summary Volume 16, Religious institutions recommendations Recommendations to the Anglican Church Recommendation 16.1 The Anglican Church of Australia should adopt a uniform episcopal standards framework that ensures that bishops and former bishops are accountable to an appropriate authority or body in relation to their response to complaints of child sexual abuse. Recommendation 16.2 The Anglican Church of Australia should adopt a policy relating to the management of actual or perceived conflicts of interest that may arise in relation to allegations of child sexual abuse, which expressly covers: a. members of professional standards bodies b. members of diocesan councils (otherwise known as bishop-in-council or standing committee of synod) c. members of the Standing Committee of the General Synod d. chancellors and legal advisers for dioceses. Recommendation 16.3 The Anglican Church of Australia should amend Being together and any other statement of expectations or code of conduct for lay members of the Anglican Church to expressly refer to the importance of child safety. Recommendation 16.4 The Anglican Church of Australia should develop a national approach to the selection, screening and training of candidates for ordination in the Anglican Church. Recommendation 16.5 The Anglican Church of Australia should develop and each diocese should implement mandatory national standards to ensure that all people in religious or pastoral ministry (bishops, clergy, religious and lay personnel): a. undertake mandatory, regular professional development, compulsory components being professional responsibility and boundaries, ethics in ministry and child safety b. undertake mandatory professional/pastoral supervision c. undergo regular performance appraisals. Royal Commission into Institutional Responses to Child Sexual Abuse 153 Recommendations to the Catholic Church Recommendation 16.6 The bishop of each Catholic Church diocese in Australia should ensure that parish priests are not the employers of principals and teachers in Catholic schools. Recommendation 16.7 The Australian Catholic Bishops Conference should conduct a national review of the governance and management structures of dioceses and parishes, including in relation to issues of transparency, accountability, consultation and the participation of lay men and women. This review should draw from the approaches to governance of Catholic health, community services and education agencies. Recommendation 16.8 In the interests of child safety and improved institutional responses to child sexual abuse, the Australian Catholic Bishops Conference should request the Holy See to: a. publish criteria for the selection of bishops, including relating to the promotion of child safety b. establish a transparent process for appointing bishops which includes the direct participation of lay people. Recommendation 16.9 The Australian Catholic Bishops Conference should request the Holy See to amend the 1983 Code of Canon Law to create a new canon or series of canons specifically relating to child sexual abuse, as follows: a. All delicts relating to child sexual abuse should be articulated as canonical crimes against the child, not as moral failings or as breaches of the ‘special obligation’ of clerics and religious to observe celibacy. b. All delicts relating to child sexual abuse should apply to any person holding a ‘dignity, office or responsibility in the Church’ regardless of whether they are ordained or not ordained. c. In relation to the acquisition, possession, or distribution of pornographic images, the delict (currently contained in Article 6 §2 1° of the revised 2010 norms attached to the motu proprio Sacramentorum sanctitatis tutela) should be amended to refer to minors under the age of 18, not minors under the age of 14. 154 Final Report: Preface and executive summary Recommendation 16.10 The Australian Catholic Bishops Conference should request the Holy See to amend canon law so that the pontifical secret does not apply to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse. Recommendation 16.11 The Australian Catholic Bishops Conference should request the Holy See to amend canon law to ensure that the ‘pastoral approach’ is not an essential precondition to the commencement of canonical action relating to child sexual abuse. Recommendation 16.12 The Australian Catholic Bishops Conference should request the Holy See to amend canon law to remove the time limit (prescription) for commencement of canonical actions relating to child sexual abuse. This amendment should apply retrospectively. Recommendation 16.13 The Australian Catholic Bishops Conference should request the Holy See to amend the ‘imputability’ test in canon law so that a diagnosis of paedophilia is not relevant to the prosecution of or penalty for a canonical offence relating to child sexual abuse. Recommendation 16.14 The Australian Catholic Bishops Conference should request the Holy See to amend canon law to give effect to Recommendations 16.55 and 16.56. Recommendation 16.15 The Australian Catholic Bishops Conference and Catholic Religious Australia, in consultation with the Holy See, should consider establishing an Australian tribunal for trying canonical disciplinary cases against clergy, whose decisions could be appealed to the Apostolic Signatura in the usual way. Recommendation 16.16 The Australian Catholic Bishops Conference should request the Holy See to introduce measures to ensure that Vatican Congregations and canonical appeal courts always publish decisions in disciplinary matters relating to child sexual abuse, and provide written reasons for their decisions. Publication should occur in a timely manner. In some cases it may be appropriate to suppress information that might lead to the identification of a victim. Royal Commission into Institutional Responses to Child Sexual Abuse 155 Recommendation 16.17 The Australian Catholic Bishops Conference should request the Holy See to amend canon law to remove the requirement to destroy documents relating to canonical criminal cases in matters of morals, where the accused cleric has died or ten years have elapsed from the condemnatory sentence. In order to allow for delayed disclosure of abuse by victims and to take account of the limitation periods for civil actions for child sexual abuse, the minimum requirement for retention of records in the secret archives should be at least 45 years. Recommendation 16.18 The Australian Catholic Bishops Conference should request the Holy See to consider introducing voluntary celibacy for diocesan clergy. Recommendation 16.19 All Catholic religious institutes in Australia, in consultation with their international leadership and the Holy See as required, should implement measures to address the risks of harm to children and the potential psychological and sexual dysfunction associated with a celibate rule of religious life. This should include consideration of whether and how existing models of religious life could be modified to facilitate alternative forms of association, shorter terms of celibate commitment, and/or voluntary celibacy (where that is consistent with the form of association that has been chosen). Recommendation 16.20 In order to promote healthy lives for those who choose to be celibate, the Australian Catholic Bishops Conference and all Catholic religious institutes in Australia should further develop, regularly evaluate and continually improve, their processes for selecting, screening and training of candidates for the clergy and religious life, and their processes of ongoing formation, support and supervision of clergy and religious. Recommendation 16.21 The Australian Catholic Bishops Conference and Catholic Religious Australia should establish a national protocol for screening candidates before and during seminary or religious formation, as well as before ordination or the profession of religious vows. 156 Final Report: Preface and executive summary Recommendation 16.22 The Australian Catholic Bishops Conference and Catholic Religious Australia should establish a mechanism to ensure that diocesan bishops and religious superiors draw upon broad-ranging professional advice in their decision-making, including from staff from seminaries or houses of formation, psychologists, senior clergy and religious, and lay people, in relation to the admission of individuals to: a. seminaries and houses of religious formation b. ordination and/or profession of vows. Recommendation 16.23 In relation to guideline documents for the formation of priests and religious: a. The Australian Catholic Bishops Conference should review and revise the Ratio nationalis institutionis sacerdotalis: Programme for priestly formation (current version December 2015), and all other guideline documents relating to the formation of priests, permanent deacons, and those in pastoral ministry, to explicitly address the issue of child sexual abuse by clergy and best practice in relation to its prevention. b. All Catholic religious institutes in Australia should review and revise their particular norms and guideline documents relating to the formation of priests, religious brothers, and religious sisters, to explicitly address the issue of child sexual abuse and best practice in relation to its prevention. Recommendation 16.24 The Australian Catholic Bishops Conference and Catholic Religious Australia should conduct a national review of current models of initial formation to ensure that they promote pastoral effectiveness, (including in relation to child safety and pastoral responses to victims and survivors) and protect against the development of clericalist attitudes. Recommendation 16.25 The Australian Catholic Bishops Conference and Catholic Religious Australia should develop and each diocese and religious institute should implement mandatory national standards to ensure that all people in religious or pastoral ministry (bishops, provincials, clergy, religious, and lay personnel): a. undertake mandatory, regular professional development, compulsory components being professional responsibility and boundaries, ethics in ministry, and child safety b. undertake mandatory professional/pastoral supervision c. undergo regular performance appraisals. Royal Commission into Institutional Responses to Child Sexual Abuse 157 Recommendation 16.26 The Australian Catholic Bishops Conference should consult with the Holy See, and make public any advice received, in order to clarify whether: a. information received from a child during the sacrament of reconciliation that they have been sexually abused is covered by the seal of confession b. if a person confesses during the sacrament of reconciliation to perpetrating child sexual abuse, absolution can and should be withheld until they report themselves to civil authorities. Recommendations to the Jehovah’s Witness organisation Recommendation 16.27 The Jehovah’s Witness organisation should abandon its application of the two-witness rule in cases involving complaints of child sexual abuse. Recommendation 16.28 The Jehovah’s Witness organisation should revise its policies so that women are involved in processes related to investigating and determining allegations of child sexual abuse. Recommendation 16.29 The Jehovah’s Witness organisation should no longer require its members to shun those who disassociate from the organisation in cases where the reason for disassociation is related to a person being a victim of child sexual abuse. Recommendations to Jewish institutions Recommendation 16.30 All Jewish institutions in Australia should ensure that their complaint handling policies explicitly state that the halachic concepts of mesirah, moser and loshon horo do not apply to the communication and reporting of allegations of child sexual abuse to police and other civil authorities. 158 Final Report: Preface and executive summary Recommendations to all religious institutions in Australia Recommendation 16.31 All institutions that provide activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children, should implement the 10 Child Safe Standards identified by the Royal Commission. Recommendation 16.32 Religious organisations should adopt the Royal Commission’s 10 Child Safe Standards as nationally mandated standards for each of their affiliated institutions. Recommendation 16.33 Religious organisations should drive a consistent approach to the implementation of the Royal Commission’s 10 Child Safe Standards in each of their affiliated institutions. Recommendation 16.34 Religious organisations should work closely with relevant state and territory oversight bodies to support the implementation of and compliance with the Royal Commission’s 10 Child Safe Standards in each of their affiliated institutions. Recommendation 16.35 Religious institutions in highly regulated sectors, such as schools and out-of-home care service providers, should report their compliance with the Royal Commission’s 10 Child Safe Standards, as monitored by the relevant sector regulator, to the religious organisation to which they are affiliated. Recommendation 16.36 Consistent with Child Safe Standard 1, each religious institution in Australia should ensure that its religious leaders are provided with leadership training both pre- and post-appointment, including in relation to the promotion of child safety. Recommendation 16.37 Consistent with Child Safe Standard 1, leaders of religious institutions should ensure that there are mechanisms through which they receive advice from individuals with relevant professional expertise on all matters relating to child sexual abuse and child safety. This should include in relation to prevention, policies and procedures and complaint handling. These mechanisms should facilitate advice from people with a variety of professional backgrounds and include lay men and women. Royal Commission into Institutional Responses to Child Sexual Abuse 159 Recommendation 16.38 Consistent with Child Safe Standard 1, each religious institution should ensure that religious leaders are accountable to an appropriate authority or body, such as a board of management or council, for the decisions they make with respect to child safety. Recommendation 16.39 Consistent with Child Safe Standard 1, each religious institution should have a policy relating to the management of actual or perceived conflicts of interest that may arise in relation to allegations of child sexual abuse. The policy should cover all individuals who have a role in responding to complaints of child sexual abuse. Recommendation 16.40 Consistent with Child Safe Standard 2, wherever a religious institution has children in its care, those children should be provided with age-appropriate prevention education that aims to increase their knowledge of child sexual abuse and build practical skills to assist in strengthening self-protective skills and strategies. Prevention education in religious institutions should specifically address the power and status of people in religious ministry and educate children that no one has a right to invade their privacy and make them feel unsafe. Recommendation 16.41 Consistent with Child Safe Standard 3, each religious institution should make provision for family and community involvement by publishing all policies relevant to child safety on its website, providing opportunities for comment on its approach to child safety, and seeking periodic feedback about the effectiveness of its approach to child safety. Recommendation 16.42 Consistent with Child Safe Standard 5, each religious institution should require that candidates for religious ministry undergo external psychological testing, including psychosexual assessment, for the purposes of determining their suitability to be a person in religious ministry and to undertake work involving children. 160 Final Report: Preface and executive summary Recommendation 16.43 Each religious institution should ensure that candidates for religious ministry undertake minimum training on child safety and related matters, including training that: a. equips candidates with an understanding of the Royal Commission’s 10 Child Safe Standards b. educates candidates on: i. professional responsibility and boundaries, ethics in ministry and child safety ii. policies regarding appropriate responses to allegations or complaints of child sexual abuse, and how to implement these policies iii. how to work with children, including childhood development iv. identifying and understanding the nature, indicators and impacts of child sexual abuse. Recommendation 16.44 Consistent with Child Safe Standard 5, each religious institution should ensure that all people in religious or pastoral ministry, including religious leaders, are subject to effective management and oversight and undertake annual performance appraisals. Recommendation 16.45 Consistent with Child Safe Standard 5, each religious institution should ensure that all people in religious or pastoral ministry, including religious leaders, have professional supervision with a trained professional or pastoral supervisor who has a degree of independence from the institution within which the person is in ministry. Recommendation 16.46 Religious institutions which receive people from overseas to work in religious or pastoral ministry, or otherwise within their institution, should have targeted programs for the screening, initial training and professional supervision and development of those people. These programs should include material covering professional responsibility and boundaries, ethics in ministry and child safety. Recommendation 16.47 Consistent with Child Safe Standard 7, each religious institution should require that all people in religious or pastoral ministry, including religious leaders, undertake regular training on the institution’s child safe policies and procedures. They should also be provided with opportunities for external training on best practice approaches to child safety. Royal Commission into Institutional Responses to Child Sexual Abuse 161 Recommendation 16.48 Religious institutions which have a rite of religious confession for children should implement a policy that requires the rite only be conducted in an open space within the clear line of sight of another adult. The policy should specify that, if another adult is not available, the rite of religious confession for the child should not be performed. Recommendation 16.49 Codes of conduct in religious institutions should explicitly and equally apply to people in religious ministry and to lay people. Recommendation 16.50 Consistent with Child Safe Standard 7, each religious institution should require all people in religious ministry, leaders, members of boards, councils and other governing bodies, employees, relevant contractors and volunteers to undergo initial and periodic training on its code of conduct. This training should include: a. what kinds of allegations or complaints relating to child sexual abuse should be reported and to whom b. identifying inappropriate behaviour which may be a precursor to abuse, including grooming c. recognising physical and behavioural indicators of child sexual abuse d. that all complaints relating to child sexual abuse must be taken seriously, regardless of the perceived severity of the behaviour. Recommendation 16.51 All religious institutions’ complaint handling policies should require that, upon receiving a complaint of child sexual abuse, an initial risk assessment is conducted to identify and minimise any risks to children. Recommendation 16.52 All religious institutions’ complaint handling policies should require that, if a complaint of child sexual abuse against a person in religious ministry is plausible, and there is a risk that person may come into contact with children in the course of their ministry, the person be stood down from ministry while the complaint is investigated. Recommendation 16.53 The standard of proof that a religious institution should apply when deciding whether a complaint of child sexual abuse has been substantiated is the balance of probabilities, having regard to the principles in Briginshaw v Briginshaw. 162 Final Report: Preface and executive summary Recommendation 16.54 Religious institutions should apply the same standards for investigating complaints of child sexual abuse whether or not the subject of the complaint is a person in religious ministry. Recommendation 16.55 Any person in religious ministry who is the subject of a complaint of child sexual abuse which is substantiated on the balance of probabilities, having regard to the principles in Briginshaw v Briginshaw, or who is convicted of an offence relating to child sexual abuse, should be permanently removed from ministry. Religious institutions should also take all necessary steps to effectively prohibit the person from in any way holding himself or herself out as being a person with religious authority. Recommendation 16.56 Any person in religious ministry who is convicted of an offence relating to child sexual abuse should: a. in the case of Catholic priests and religious, be dismissed from the priesthood and/or dispensed from his or her vows as a religious b. in the case of Anglican clergy, be deposed from holy orders c. in the case of Uniting Church ministers, have his or her recognition as a minister withdrawn d. in the case of an ordained person in any other religious denomination that has a concept of ordination, holy orders and/or vows, be dismissed, deposed or otherwise effectively have their religious status removed. Recommendation 16.57 Where a religious institution becomes aware that any person attending any of its religious services or activities is the subject of a substantiated complaint of child sexual abuse, or has been convicted of an offence relating to child sexual abuse, the religious institution should: a. assess the level of risk posed to children by that perpetrator’s ongoing involvement in the religious community b. take appropriate steps to manage that risk. Recommendation 16.58 Each religious organisation should consider establishing a national register which records limited but sufficient information to assist affiliated institutions identify and respond to any risks to children that may be posed by people in religious or pastoral ministry. Royal Commission into Institutional Responses to Child Sexual Abuse 163 Volume 17, Beyond the Royal Commission recommendations Monitoring and reporting on implementation An initial government response Recommendation 17.1 The Australian Government and state and territory governments should each issue a formal response to this Final Report within six months of it being tabled, indicating whether our recommendations are accepted, accepted in principle, rejected or subject to further consideration. Ongoing periodic reporting Recommendation 17.2 The Australian Government and state and territory governments should, beginning 12 months after this Final Report is tabled, report on their implementation of the Royal Commission’s recommendations made in this Final Report and its earlier Working With Children Checks, Redress and civil litigation and Criminal justice reports, through five consecutive annual reports tabled before their respective parliaments. Recommendation 17.3 Major institutions and peak bodies of institutions that engage in child-related work should, beginning 12 months after this Final Report is tabled, report on their implementation of the Royal Commission’s recommendations to the National Office for Child Safety through five consecutive annual reports. The National Office for Child Safety should make these reports publicly available. At a minimum, the institutions reporting should include those that were the subject of the Royal Commission’s institutional review hearings held from 5 December 2016 to 10 March 2017. 164 Final Report: Preface and executive summary 10-year review Recommendation 17.4 The Australian Government should initiate a review to be conducted 10 years after the tabling of this Final Report. This review should: a. establish the extent to which the Royal Commission’s recommendations have been implemented 10 years after the tabling of the Final Report b. examine the extent to which the measures taken in response to the Royal Commission have been effective in preventing child sexual abuse, improving the responses of institutions to child sexual abuse and ensuring that victims and survivors of child sexual abuse obtain justice, treatment and support c. advise on what further steps should be taken by governments and institutions to ensure continuing improvement in policy and service delivery in relation to child sexual abuse in institutional contexts. Preserving the records of the Royal Commission Recommendation 17.5 The Australian Government should host and maintain the Royal Commission website for the duration of the national redress scheme for victims and survivors of institutional child sexual abuse. A national memorial to victims and survivors of child sexual abuse in institutional contexts Recommendation 17.6 A national memorial should be commissioned by the Australian Government for victims and survivors of child sexual abuse in institutional contexts. Victims and survivors should be consulted on the memorial design and it should be located in Canberra. Royal Commission into Institutional Responses to Child Sexual Abuse 165 Working With Children Checks report recommendations (2015) General 1. State and territory governments should: a. within 12 months of the publication of this report, amend their WWCC laws to implement the standards identified in this report b. once the standards are implemented, obtain agreement from the Council of Australian Governments (COAG), or a relevant ministerial council, before deviating from or altering the standards in this report, adopting changes across all jurisdictions c. within 18 months from the publication of this report, amend their WWCC laws to enable clearances from other jurisdictions to be recognised and accepted. 2. The South Australian Government should, within 12 months of the publication of this report, replace its criminal history assessments with a WWCC scheme that incorporates the standards set out in this report. 3. The Commonwealth Government should, within 12 months of the publication of this report: a. facilitate a national model for WWCCs by: i. establishing a centralised database, operated by CrimTrac, that is readily accessible to all jurisdictions to record WWCC decisions ii. together with state and territory governments, identifying consistent terminology to capture key WWCC decisions (for example, refusal, cancellation, suspension and grant) for recording into the centralised database iii. enhancing CrimTrac’s capacity to continuously monitor WWCC cardholders’ national criminal history records b. explore avenues to make international records more accessible for the purposes of WWCCs c. identify and require all Commonwealth Government personnel, including contractors, undertaking child-related work, as defined by the child-related work standards set out in this report, to obtain WWCCs. 166 Final Report: Preface and executive summary 4. The Commonwealth, state and territory governments should, within 12 months of the publication of this report: a. agree on a set of standards or guidelines to enhance the accurate and timely recording of information by state and territory police into CrimTrac’s system b. review the information they have agreed to exchange under the National Exchange of Criminal History Information for People Working with Children (ECHIPWC), and establish a set of definitions for the key terms used to describe the different types of criminal history records so they are consistent across the jurisdictions (these key terms include pending charges, non-conviction charges and information about the circumstances of an offence) c. take immediate action to record into CrimTrac’s system historical criminal records that are in paper form or on microfilm and which are not currently identified by CrimTrac’s initial database search d. once these historical criminal history records are entered into CrimTrac’s system by all jurisdictions, check all WWCC cardholders against them through the expanded continuous monitoring process. Standards Child-related work 5. State and territory governments should amend their WWCC laws to incorporate a consistent and simplified definition of child-related work, in line with the recommendations below. 6. State and territory governments should amend their WWCC laws to provide that work must involve contact between an adult and one or more children to qualify as child-related work. 7. State and territory governments should: a. amend their WWCC laws to provide that the phrase ‘contact with children’ refers to physical contact, face-to-face contact, oral communication, written communication or electronic communication b. through COAG, or a relevant ministerial council, agree on standard definitions for each kind of contact and amend their WWCC laws to incorporate those definitions. 8. State and territory governments should: a. amend their WWCC laws to provide that contact with children must be a usual part of, and more than incidental to, the child-related work b. through COAG, or a relevant ministerial council, agree on standard definitions for the phrases ‘usual part of work’ and ‘more than incidental to the work’, and amend their WWCC laws to incorporate those definitions. Royal Commission into Institutional Responses to Child Sexual Abuse 167 9. State and territory governments should amend their WWCC laws to specify that it is irrelevant whether the contact with children is supervised or unsupervised. 10. State and territory governments should amend their WWCC laws to provide that a person is engaged in child-related work if they are engaged in the work in any capacity and whether or not for reward. 11. State and territory governments should amend their WWCC laws to provide that work that is undertaken under an arrangement for a personal or domestic purpose is not childrelated, even if it would otherwise be so considered. 12. State and territory governments should amend their WWCC laws to: a. define the following as child-related work: i. accommodation and residential services for children, including overnight excursions or stays ii. activities or services provided by religious leaders, officers or personnel of religious organisations iii. childcare or minding services iv. child protection services, including out-of-home care (OOHC) v. clubs and associations with a significant membership of, or involvement by, children vi. coaching or tuition services for children vii. commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions viii. disability services for children ix. education services for children x. health services for children xi. justice and detention services for children, including immigration detention facilities where children are regularly detained xii. transport services for children, including school crossing services xiii. other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles. b. require WWCCs for adults residing in the homes of authorised carers of children c. remove all other remaining categories of work or roles. 13. State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each category of child-related work and amend their WWCC laws to incorporate those definitions. 168 Final Report: Preface and executive summary Exemptions 14. State and territory governments should amend their WWCC laws to: a. exempt: i. children under 18 years of age, regardless of their employment status ii. employers and supervisors of children in a workplace, unless the work is child-related iii. people who engage in child-related work for seven days or fewer in a calendar year, except in respect of overnight excursions or stays iv. people who engage in child-related work in the same capacity as the child v. police officers, including members of the Australian Federal Police vi. parents or guardians who volunteer for services or activities that are usually provided to their children, in respect of that activity, except in respect of: a) overnight excursions or stays b) providing services to children with disabilities, where the services involve close, personal contact with those children b. remove all other exemptions and exclusions c. prohibit people who have been denied a WWCC, and subsequently not granted one, from relying on any exemption. 15. State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each exemption category and amend their WWCC laws to incorporate those definitions. Offences 16. State and territory governments should amend their WWCC laws to incorporate a consistent and simplified list of offences, including: a. engaging in child-related work without holding, or having applied for, a WWCC b. engaging a person in child-related work without them holding, or having applied for, a WWCC c. providing false or misleading information in connection with a WWCC application d. applicants and/or WWCC cardholders failing to notify screening agencies of relevant changes in circumstances e. unauthorised disclosure of information gathered during the course of a WWCC. Royal Commission into Institutional Responses to Child Sexual Abuse 169 Criminal history information 17. State and territory governments should amend their WWCC laws to include a standard definition of criminal history, for WWCC purposes, comprised of: a. convictions, whether or not spent b. findings of guilt that did not result in a conviction being recorded a. charges, regardless of status or outcome, including: i. pending charges – that is, charges laid but not finalised ii. charges disposed of by a court, or otherwise, other than by way of conviction (for example, withdrawn, set aside or dismissed) iii. charges that led to acquittals or convictions that were quashed or otherwise over-turned on appeal for all offences, irrespective of whether or not they concern the person’s history as an adult or a child and/or relate to offences outside Australia. 18. State and territory governments should amend their WWCC laws to require police services to provide screening agencies with records that meet the definition of criminal history records for WWCC purposes and any other available information relating to the circumstances of such offences. Disciplinary or misconduct information 19. State and territory governments should amend their WWCC laws to: a. require that relevant disciplinary and/or misconduct information is checked for all WWCC applicants b. include a standard definition of disciplinary and/or misconduct information that encompasses disciplinary action and/or findings of misconduct where the conduct was against, or involved, a child, irrespective of whether this information arises from reportable conduct schemes or other systems or bodies responsible for disciplinary or misconduct proceedings c. require the bodies responsible for the relevant disciplinary and/or misconduct information to notify their respective screening agencies of relevant disciplinary and/or misconduct information that meets the definition. 170 Final Report: Preface and executive summary Response to records returned 20. State and territory governments should amend their WWCC laws to respond to records in the same way, specifically that: a. the absence of any relevant criminal history, disciplinary or misconduct information in an applicant’s history leads to an automatic grant of a WWCC b. any conviction and/or pending charge in an applicant’s criminal history for the following categories of offence leads to an automatic WWCC refusal, provided the applicant was at least 18 years old at the time of the offence: i. murder of a child ii. manslaughter of a child iii. indecent or sexual assault of a child iv. child pornography-related offences v. incest where the victim was a child vi. abduction or kidnapping of a child vii. animal-related sexual offences. c. all other relevant criminal, disciplinary or misconduct information should trigger an assessment of the person’s suitability for a WWCC (consistent with the risk assessment factors set out below). 21. State and territory governments should amend their WWCC laws to specify that relevant criminal records for the purposes of recommendation 20(c) include but are not limited to the following: a. juvenile records and/or non-conviction charges for the offence categories specified in recommendation 20(b) b. sexual offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b) c. violent offences, including assaults, arson and other fire-related offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b) d. child welfare offences e. offences involving cruelty to animals f. drug offences. 22. The Commonwealth Government, through COAG, or a relevant ministerial council, should take a lead role in identifying the specific criminal offences that fall within the categories specified in recommendations 20(b) and 21. Royal Commission into Institutional Responses to Child Sexual Abuse 171 Assessing risk 23. State and territory governments should amend their WWCC laws to specify that the criteria for assessing risks to children include: a. the nature, gravity and circumstances of the offence and/or misconduct, and how this is relevant to children or child-related work b. the length of time that has passed since the offence and/or misconduct occurred c. the age of the child d. the age difference between the person and the child e. the person’s criminal and/or disciplinary history, including whether there is a pattern of concerning conduct f. all other relevant circumstances in respect of their history and the impact on their suitability to be engaged in child-related work. 24. State and territory governments should amend their WWCC laws to expressly provide that, in weighing up the risk assessment criteria, the paramount consideration must always be the best interests of children, having regard to their safety and protection. Eligibility to work while an application is assessed 25. State and territory governments should amend their WWCC laws to permit WWCC applicants to begin child-related work before the outcome of their application is determined, provided the safeguards listed below are introduced. Applicants a. applicants must submit a WWCC application to the appropriate screening agency before beginning child-related work and not withdraw the application while engaging in child-related work b. applicants must provide a WWCC application receipt to their employers before beginning child-related work Other safeguards c. employers must cite application receipts, record application numbers and verify applications with the relevant screening agency d. there must be capacity to impose interim bars on applicants where records are identified that may indicate a risk and require further assessment. 172 Final Report: Preface and executive summary 26. State and territory governments that do not have an online WWCC processing system should establish one. 27. State and territory governments should process WWCC applications within five working days, and no longer than 21 working days for more complex cases. Clearance types 28. All state and territory governments should amend their WWCC laws to specify that: a. WWCC decisions are based on the circumstances of the individual and are detached from the employer the person is seeking to work for, or the role or organisation the person is seeking to work in b. the outcome of a WWCC is either that a clearance is issued or it is not; there should be no conditional or different types of clearances c. volunteers and employees are issued with the same type of clearance. Appeals 29. All state and territory governments should ensure that any person the subject of an adverse WWCC decision can appeal to a body independent of the WWCC screening agency, but within the same jurisdiction, for a review of the decision, except persons who have been convicted of one of the following categories of offences: • murder of a child • indecent or sexual assault of a child • child pornography-related offences • incest where the victim was a child and a. received a sentence of full time custody for the conviction, such persons being permanently excluded from an appeal or b. by virtue of that conviction, the person is subject to an order that imposes any control on the person’s conduct or movement, or excludes the person from working with children, such persons being excluded from an appeal for the duration of that order. Notwithstanding the above any person may bring an appeal in which they allege that offences have been mistakenly recorded as applying to that person. Royal Commission into Institutional Responses to Child Sexual Abuse 173 Portability 30. Subject to the implementation of the standards set out in this report, all state and territory governments should amend their WWCC laws to enable WWCCs from other jurisdictions to be recognised and accepted. Duration and continuous monitoring 31. Subject to the commencement of continuous monitoring of national criminal history records, state and territory governments should amend their WWCC laws to specify that: a. WWCCs are valid for five years b. employers and WWCC cardholders engaged in child-related work must inform the screening agency when a person commences or ceases being engaged in specific child-related work c. screening agencies are required to notify a person’s employer of any change in the person’s WWCC status. Monitoring compliance 32. All state and territory governments should grant screening agencies, or another suitable regulatory body, the statutory power to monitor compliance with WWCC laws. 33. All state and territory governments should ensure their WWCC laws include powers to compel the production of relevant information for the purposes of compliance monitoring. 174 Final Report: Preface and executive summary Governance 34. The Commonwealth, state and territory governments should: a. through COAG, or a relevant ministerial council, adopt the standards and set a timeframe within which all jurisdictions must report back to COAG, or a relevant ministerial council, on implementation b. establish a process whereby changes to the standards or to state and territory schemes need to be agreed to by COAG, or a relevant ministerial council, and must be adopted across all jurisdictions. 35. The Commonwealth, state and territory governments should provide an annual report to COAG, or a relevant ministerial council, for three years following the publication of this report, to be tabled in the parliaments of all nine jurisdictions, detailing their progress in implementing the recommendations in this report and achieving a nationally consistent approach to WWCCs. 36. COAG, or a relevant ministerial council, should ensure a review is made after three years of the publication of this report, of the state and territory governments’ progress in achieving consistency across the WWCC schemes, with a view to assessing whether they have implemented the Royal Commission’s recommendations. Royal Commission into Institutional Responses to Child Sexual Abuse 175 Redress and civil litigation report recommendations (2015) Justice for victims 1. 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. Redress elements and principles 2. Appropriate redress for survivors should include the elements of: a. direct personal response b. counselling and psychological care c. monetary payments. 3. Funders or providers of existing support services should maintain their current resourcing for existing support services, without reducing or diverting resources in response to the Royal Commission’s recommendations on redress and civil litigation. 4. Any institution or redress scheme that offers or provides any element of redress should do so in accordance with the following principles: a. Redress should be survivor focused. b. There should be a ‘no wrong door’ approach for survivors in gaining access to redress. c. All redress should be offered, assessed and provided with appropriate regard to what is known about the nature and impact of child sexual abuse – and institutional child sexual abuse in particular – and to the cultural needs of survivors. d. All redress should be offered, assessed and provided with appropriate regard to the needs of particularly vulnerable survivors. 176 Final Report: Preface and executive summary Direct personal response 5. Institutions should offer and provide a direct personal response to survivors in accordance with the following principles: a. Re-engagement between a survivor and an institution should only occur if, and to the extent that, a survivor desires it. b. Institutions should make clear what they are willing to offer and provide by way of direct personal response to survivors of institutional child sexual abuse. Institutions should ensure that they are able to provide the direct personal response they offer to survivors. c. At a minimum, all institutions should offer and provide on request by a survivor: i. an apology from the institution ii. the opportunity to meet with a senior institutional representative and receive an acknowledgement of the abuse and its impact on them iii. an assurance or undertaking from the institution that it has taken, or will take, steps to protect against further abuse of children in that institution. d. In offering direct personal responses, institutions should try to be responsive to survivors’ needs. e. Institutions that already offer a broader range of direct personal responses to survivors and others should consider continuing to offer those forms of direct personal response. f. Direct personal responses should be delivered by people who have received some training about the nature and impact of child sexual abuse and the needs of survivors, including cultural awareness and sensitivity training where relevant. g. Institutions should welcome feedback from survivors about the direct personal response they offer and provide. 6. Those who operate a redress scheme should offer to facilitate the provision of a written apology, a written acknowledgement and/or a written assurance of steps taken to protect against further abuse for survivors who seek these forms of direct personal response but who do not wish to have any further contact with the institution. 7. Those who operate a redress scheme should facilitate the provision of these forms of direct personal response by conveying survivors’ requests for these forms of direct personal response to the relevant institution. 8. Institutions should accept a survivor’s choice of intermediary or representative to engage with the institution on behalf of the survivor, or with the survivor as a support person, in seeking or obtaining a direct personal response. Royal Commission into Institutional Responses to Child Sexual Abuse 177 Counselling and psychological care 9. Counselling and psychological care should be supported through redress in accordance with the following principles: a. Counselling and psychological care should be available throughout a survivor’s life. b. Counselling and psychological care should be available on an episodic basis. c. Survivors should be allowed flexibility and choice in relation to counselling and psychological care. d. There should be no fixed limits on the counselling and psychological care provided to a survivor. e. Without limiting survivor choice, counselling and psychological care should be provided by practitioners with appropriate capabilities to work with clients with complex trauma. f. Treating practitioners should be required to conduct ongoing assessment and review to ensure treatment is necessary and effective. If those who fund counselling and psychological care through redress have concerns about services provided by a particular practitioner, they should negotiate a process of external review with that practitioner and the survivor. Any process of assessment and review should be designed to ensure it causes no harm to the survivor. g. Counselling and psychological care should be provided to a survivor’s family members if necessary for the survivor’s treatment. 10. To facilitate the provision of counselling and psychological care by practitioners with appropriate capabilities to work with clients with complex trauma: a. the Australian Psychological Society should lead work to design and implement a public register to enable identification of practitioners with appropriate capabilities to work with clients with complex trauma b. the public register and the process to identify practitioners with appropriate capabilities to work with clients with complex trauma should be designed and implemented by a group that includes representatives of the Australian Psychological Society, the Australian Association of Social Workers, the Royal Australian and New Zealand College of Psychiatrists, Adults Surviving Child Abuse, a specialist sexual assault service, and a non-government organisation with a suitable understanding of the counselling and psychological care needs of Aboriginal and Torres Strait Islander survivors c. the funding for counselling and psychological care under redress should be used to provide financial support for the public register if required d. those who operate a redress scheme should ensure that information about the public register is made available to survivors who seek counselling and psychological care through the redress scheme. 178 Final Report: Preface and executive summary 11. Those who administer support for counselling and psychological care through redress should ensure that counselling and psychological care are supported through redress in accordance with the following principles: a. Counselling and psychological care provided through redress should supplement, and not compete with, existing services. b. Redress should provide funding for counselling and psychological care services and should not itself provide counselling and psychological care services. c. 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. 12. The Australian Government should remove any restrictions on the number of sessions of counselling and psychological care, whether in a particular period of time or generally, for which Medicare funding is available for survivors who are assessed as eligible for redress under a redress scheme. 13. The Australian Government should expand the range of counselling and psychological care services for which Medicare funding is available for survivors who are assessed as eligible for redress under a redress scheme to include longer-term interventions that are suitable for treating complex trauma, including through non-cognitive approaches. 14. The funding obtained through redress to ensure that survivors’ needs for counselling and psychological care are met should be used to fund measures that help to meet those needs, including: a. measures to improve survivors’ access to Medicare by: i. funding case management style support to help survivors to understand what is available through the Better Access initiative and Access to Allied Psychological Services and why a GP diagnosis and referral is needed ii. maintaining a list of GPs who have mental health training, are familiar with the existence of the redress scheme and are willing to be recommended to survivors as providers of GP services, including referrals, in relation to counselling and psychological care iii. supporting the establishment and use of the public register that provides details of practitioners who have been identified as having appropriate capabilities to treat survivors and who are registered practitioners for Medicare purposes b. providing funding to supplement existing services provided by state-funded specialist services to increase the availability of services and reduce waiting times for survivors Royal Commission into Institutional Responses to Child Sexual Abuse 179 c. measures to address gaps in expertise and geographical and cultural gaps by: i. supporting the establishment and promotion of the public register that provides details of practitioners who have been identified as having appropriate capabilities to treat survivors ii. funding training in cultural awareness for practitioners who have the capabilities to work with survivors but have not had the necessary training or experience in working with Aboriginal and Torres Strait Islander survivors iii. funding rural and remote practitioners, or Aboriginal and Torres Strait Islander practitioners, to obtain appropriate capabilities to work with survivors iv. providing funding to facilitate regional and remote visits to assist in establishing therapeutic relationships; these could then be maintained largely by online or telephone counselling. There could be the potential to fund additional visits if required from time to time d. providing funding for counselling and psychological care for survivors whose needs for counselling and psychological care cannot otherwise be met, including by paying reasonable gap fees charged by practitioners if survivors are unable to afford these fees. Monetary payments 15. The purpose of a monetary payment under redress should be to provide a tangible recognition of the seriousness of the hurt and injury suffered by a survivor. 16. Monetary payments should be assessed and determined by using the following matrix: Factor Severity of abuse Impact of abuse Additional elements Value 1–40 1–40 1–20 17. The ‘Additional elements’ factor should recognise the following elements: a. whether the applicant was in state care at the time of the abuse – that is, as a ward of the state or under the guardianship of the relevant Minister or government agency b. whether the applicant experienced other forms of abuse in conjunction with the sexual abuse – including physical, emotional or cultural abuse or neglect c. whether the applicant was in a ‘closed’ institution or without the support of family or friends at the time of the abuse d. whether the applicant was particularly vulnerable to abuse because of his or her disability. 180 Final Report: Preface and executive summary 18. Those establishing a redress scheme should commission further work to develop this matrix and the detailed assessment procedures and guidelines required to implement it: a. in accordance with our discussion of the factors b. taking into account expert advice in relation to institutional child sexual abuse, including child development, medical, psychological, social and legal perspectives c. with the benefit of actuarial advice in relation to the actuarial modelling on which the level and spread of monetary payments and funding expectations are based. 19. The appropriate level of monetary payments under redress should be: a. a minimum payment of $10,000 b. a maximum payment of $200,000 for the most severe case c. an average payment of $65,000. 20. Monetary payments should be assessed and paid without any reduction to repay past Medicare expenses, which are to be repaid (if required) as part of the administration costs of a redress scheme. 21. Consistent with our view that monetary payments under redress are not income for the purposes of social security, veterans’ pensions or any other Commonwealth payments, those who operate a redress scheme should seek a ruling to this effect to provide certainty for survivors. 22. Those who operate a redress scheme should give consideration to offering monetary payments by instalments at the option of eligible survivors, taking into account the likely demand for this option from survivors and the cost to the scheme of providing it. 23. Survivors who have received monetary payments in the past – whether under other redress schemes, statutory victims of crime schemes, through civil litigation or otherwise – should be eligible to be assessed for a monetary payment under redress. 24. The amount of the monetary payments that a survivor has already received for institutional child sexual abuse should be determined as follows: a. monetary payments already received should be counted on a gross basis, including any amount the survivor paid to reimburse Medicare or in legal fees b. no account should be taken of the cost of providing any services to the survivor, such as counselling services c. any uncertainty as to whether a payment already received related to the same abuse for which the survivor seeks a monetary payment through redress should be resolved in the survivor’s favour. Royal Commission into Institutional Responses to Child Sexual Abuse 181 25. The monetary payments that a survivor has already received for institutional child sexual abuse should be taken into account in determining any monetary payment under redress by adjusting the amount of the monetary payments already received for inflation and then deducting that amount from the amount of the monetary payment assessed under redress. Redress structure and funding Redress scheme structure 26. In order to provide redress under the most effective structure for ensuring justice for survivors, the Australian Government should establish a single national redress scheme. 27. If the Australian Government does not establish a single national redress scheme, as the next best option for ensuring justice for survivors, each state and territory government should establish a redress scheme covering government and non-government institutions in the relevant state or territory. 28. The Australian Government should determine and announce by the end of 2015 that it is willing to establish a single national redress scheme. 29. If the Australian Government announces that it is willing to establish a single national redress scheme, the Australian Government should commence national negotiations with state and territory governments and all parties to the negotiations should seek to ensure that the negotiations proceed as quickly as possible to agree the necessary arrangements for a single national redress scheme. 30. If the Australian Government does not announce that it is willing to establish a single national redress scheme, each state and territory government should establish a redress scheme for the relevant state or territory that covers government and non-government institutions. State and territory governments should undertake national negotiations as quickly as possible to agree the necessary matters of detail to provide the maximum possible consistency for survivors between the different state and territory schemes. 31. Whether there is a single national redress scheme or separate state and territory redress schemes, the scheme or schemes should be established and ready to begin inviting and accepting applications from survivors by no later than 1 July 2017. 32. The Australian Government (if it announces that it is willing to establish a single national redress scheme) or state and territory governments should establish a national redress advisory council to advise all participating governments on the establishment and operation of the redress scheme or schemes. 182 Final Report: Preface and executive summary 33. The national redress advisory council should include representatives: a. of survivor advocacy and support groups b. of non-government institutions, particularly those that are expected to be required to respond to a significant number of claims for redress c. with expertise in issues affecting survivors with disabilities d. with expertise in issues of particular importance to Aboriginal and Torres Strait Islander survivors e. with expertise in psychological and legal issues relevant to survivors f. with any other expertise that may assist in advising on the establishment and operation of the redress scheme or schemes. Redress scheme funding 34. For any application for redress made to a redress scheme, the cost of redress in respect of the application should be: a. a proportionate share of the cost of administration of the scheme b. if the applicant is determined to be eligible, the cost of any contribution for counselling and psychological care in respect of the applicant c. if the applicant is determined to be eligible, the cost of any monetary payment to be made to the applicant. 35. The redress scheme or schemes should be funded as much as possible in accordance with the following principles: a. The institution in which the abuse is alleged or accepted to have occurred should fund the cost of redress. b. Where an applicant alleges or is accepted to have experienced abuse in more than one institution, the redress scheme or schemes should apportion the cost of funding redress between the relevant institutions, taking account of the relative severity of the abuse in each institution and any other features relevant to calculating a monetary payment. c. Where the institution in which the abuse is alleged or accepted to have occurred no longer exists but the institution was part of a larger group of institutions or where there is a successor to the institution, the group of institutions or the successor institution should fund the cost of redress. 36. The Australian Government and state and territory governments should provide ‘funder of last resort’ funding for the redress scheme or schemes so that the governments will meet any shortfall in funding for the scheme or schemes. Royal Commission into Institutional Responses to Child Sexual Abuse 183 37. Regardless of whether there is a single national redress scheme or separate state and territory redress schemes, the Australian Government and each state or territory government should negotiate and agree their respective shares of or contributions to ‘funder of last resort’ funding in respect of applications alleging abuse in the relevant state or territory. 38. The Australian Government (if it announces that it is willing to establish a single national redress scheme) or state and territory governments should determine how best to raise the required funding for the redress scheme or schemes, including government funding and funding from non-government institutions. 39. The Australian Government or state and territory governments should determine whether or not to require particular non-government institutions or particular types of non-government institutions to contribute funding for redress. Trust fund for counselling and psychological care 40. The redress scheme, or each redress scheme, should establish a trust fund to receive the funding for counselling and psychological care paid under redress and to manage and apply that funding to meet the needs for counselling and psychological care of those eligible for redress under the relevant redress scheme. 41. The trust fund, or each trust fund, should be governed by a corporate trustee with a board of directors appointed by the government that establishes the relevant redress scheme. The board or each board should include: a. an independent Chair b. a representative of: government; non-government institutions; survivor advocacy and support groups; and the redress scheme c. those with any other expertise that is desired at board level to direct the trust. 42. The trustee, or each trustee, should engage actuaries to conduct regular actuarial assessments to determine a ‘per head’ estimate of future counselling and psychological care costs to be met through redress. The trustee, or each trustee, should determine the amount from time to time that those who fund redress, including as the funder of last resort, must pay per eligible applicant to fund the counselling and psychological care element of redress. 184 Final Report: Preface and executive summary Redress scheme processes Eligibility for redress 43. A person should be eligible to apply to a redress scheme for redress if he or she was sexually abused as a child in an institutional context and the sexual abuse occurred, or the first incidence of the sexual abuse occurred, before the cut-off date. 44. ‘Institution’ should have the same meaning as in the Royal Commission’s terms of reference. 45. Child sexual abuse should be taken to have occurred in an institutional context in the following circumstances: a. it happens: i. on premises of an institution ii. where activities of an institution take place or iii. in connection with the activities of an institution in circumstances where the institution is, or should be treated as being, responsible for the contact between the abuser and the applicant that resulted in the abuse being committed b. it is engaged in by an official of an institution in circumstances (including circumstances that involve settings not directly controlled by the institution) where the institution has, or its activities have, created, facilitated, increased, or in any way contributed to (whether by act or omission) the risk of abuse or the circumstances or conditions giving rise to that risk c. it happens in any other circumstances where the institution is, or should be treated as being, responsible for the adult abuser having contact with the applicant. 46. Those who operate the redress scheme should specify the cut-off date as being the date on which the Royal Commission’s recommended reforms to civil litigation in relation to limitation periods and the duty of institutions commence. 47. An offer of redress should only be made if the applicant is alive at the time the offer is made. Royal Commission into Institutional Responses to Child Sexual Abuse 185 Duration of a redress scheme 48. A redress scheme should have no fixed closing date. But, when applications to the scheme reduce to a level where it would be reasonable to consider closing the scheme, those who operate the redress scheme should consider specifying a closing date for the scheme. The closing date should be at least 12 months into the future. Those who operate the redress scheme should ensure that the closing date is given widespread publicity until the scheme closes. Publicising and promoting the availability of the scheme 49. Those who operate a redress scheme should ensure the availability of the scheme is widely publicised and promoted. 50. The redress scheme should consider adopting particular communication strategies for people who might be more difficult to reach, including: a. Aboriginal and Torres Strait Islander communities b. people with disability c. culturally and linguistically diverse communities d. regional and remote communities e. people with mental health difficulties f. people who are experiencing homelessness g. people in correctional or detention centres h. children and young people i. people with low levels of literacy j. survivors now living overseas. Application process 51. A redress scheme should rely primarily on completion of a written application form. 52. A redress scheme should fund support services and community legal centres to assist applicants to apply for redress. 53. A redress scheme should select support services and community legal centres to cover a broad range of likely applicants, taking into account the need to cover regional and remote areas and the particular needs of different groups of survivors, including Aboriginal and Torres Strait Islander survivors. 186 Final Report: Preface and executive summary 54. Those who operate a redress scheme should determine whether the scheme will require additional material or evidence and additional procedures to determine the validity of applications. Any additional requirements should be clearly set out in scheme material that is made available to applicants, support services and others who may support or advise applicants in relation to the scheme. 55. A redress scheme may require applicants for redress to verify their accounts of abuse by statutory declaration. Institutional involvement 56. A redress scheme should inform any institution named in an application for redress of the application and the allegations made in it and request the institution to provide any relevant information, documents or comments. Standard of proof 57. ‘Reasonable likelihood’ should be the standard of proof for determining applications for redress. Decision making on a claim 58. A redress scheme should adopt administrative decision-making processes appropriate to a large-scale redress scheme. It should make decisions based on the application of the detailed assessment procedures and guidelines for implementing the matrix for monetary payments. Offer and acceptance of offer 59. An offer of redress should remain open for acceptance for a period of one year. 60. A period of three months should be allowed for an applicant to seek a review of an offer of redress after the offer is made. Review and appeals 61. A redress scheme should offer an internal review process. 62. A redress scheme established on an administrative basis should be made subject to oversight by the relevant ombudsman through the ombudsman’s complaints mechanism. Royal Commission into Institutional Responses to Child Sexual Abuse 187 Deeds of release 63. As a condition of making a monetary payment, a redress scheme should require an applicant to release the scheme (including the contributing government or governments) and the institution from any further liability for institutional child sexual abuse by executing a deed of release. 64. A redress scheme should fund, at a fixed price, a legal consultation for an applicant before the applicant decides whether or not to accept the offer of redress and grant the required releases. 65. No confidentiality obligations should be imposed on applicants for redress. Support for survivors 66. A redress scheme should offer and fund counselling during the period from assisting applicants with the application, through the period when the application is being considered, to the making of the offer and the applicant’s consideration of whether or not to accept the offer. This should include a session of financial counselling if the applicant is offered a monetary payment. 67. A redress scheme should fund counselling provided by a therapist of the applicant’s choice if it is specifically requested by the applicant and in circumstances where the applicant has an established relationship with the therapist and the cost is reasonably comparable to the cost the redress scheme is paying for these services generally. 68. A redress scheme should offer and fund a limited number of counselling sessions for family members of survivors if reasonably required. Transparency and accountability 69. A redress scheme should take the following steps to improve transparency and accountability: a. In addition to publicising and promoting the availability of the scheme, the scheme’s processes and time frames should be as transparent as possible. The scheme should provide up-to-date information on its website and through any funded counselling and support services and community legal centres, other relevant support services and relevant institutions. b. If possible, the scheme should ensure that each applicant is allocated to a particular contact officer who they can speak to if they have any queries about the status of their application or the timing of its determination and so on. 188 Final Report: Preface and executive summary c. The scheme should operate a complaints mechanism and should welcome any complaints or feedback from applicants and others involved in the scheme (for example, support services and community legal centres). d. The scheme should provide any feedback it receives about common problems that have been experienced with applications or institutions’ responses to funded counselling and support services and community legal centres, other relevant support services and relevant institutions. It should include any suggestions on how to improve applications or responses or ensure more timely determinations. e. The scheme should publish data, at least annually, about: i. the number of applications received ii. the institutions to which the applications relate iii. the periods of alleged abuse iv. the number of applications determined v. the outcome of applications vi. the mean, median and spread of payments offered vii. the mean, median and spread of time taken to determine the application viii. the number and outcome of applications for review. Interaction with alleged abuser, disciplinary process and police 70. A redress scheme should not make any ‘findings’ that any alleged abuser was involved in any abuse. 71. A redress scheme may defer determining an application for redress if the institution advises that it is undertaking internal disciplinary processes in respect of the abuse the subject of the application. A scheme may have the discretion to consider the outcome of the disciplinary process, it if is provided by the institution, in determining the application. 72. A redress scheme should comply with any legal requirements, and make use of any permissions, to report or disclose abuse, including to oversight agencies. 73. A redress scheme should report any allegations to the police if it has reason to believe that there may be a current risk to children. If the relevant applicant does not consent to the allegations being reported to the police, the scheme should report the allegations to the police without disclosing the applicant’s identity. Royal Commission into Institutional Responses to Child Sexual Abuse 189 74. A redress scheme should seek to cooperate with any reasonable requirements of the police in terms of information sharing, subject to satisfying any privacy and consent requirements with applicants. 75. A redress scheme should encourage any applicants who seek advice from it about reporting to police to discuss their options directly with the police. Interim arrangements 76. Institutions should seek to achieve independence in institutional redress processes by taking the following steps: a. Institutions should provide information on the application process, including online, so that survivors do not need to approach the institution if there is an independent person with whom they can make their claim. b. If feasible, the process of receiving and determining claims should be administered independently of the institution to minimise the risk of any appearance that the institution can influence the process or decisions. c. Institutions should ensure that anyone they engage to handle or determine redress claims is appropriately trained in understanding child sexual abuse and its impacts and in any relevant cultural awareness issues. d. Institutions should ensure that any processes or interactions with survivors are respectful and empathetic, including by taking into account the factors discussed in Chapter 5 concerning meetings and meeting environments. e. Processes and interactions should not be legalistic. Any legal, medical and other relevant input should be obtained for the purposes of decision making. 77. Institutions should ensure that the required independence is set out clearly in writing between the institution and any person or body the institution engages as part of its redress process. 78. If a survivor alleges abuse in more than one institution, the institution to which the survivor applies for redress should adopt the following process: a. With the survivor’s consent, the institution’s redress process should approach the other named institutions to seek cooperation on the claim. b. If the survivor consents and the relevant institutions agree, one institutional process should assess the survivor’s claim in accordance with the recommended redress elements and processes (with any necessary modifications because of the absence of a government-run scheme) and allocate contributions between the institutions. c. If any institution no longer exists and has no successor, its share should be met by the other institution or institutions. 190 Final Report: Preface and executive summary 79. Institutions should adopt the elements of redress and the general principles for providing redress recommended in Chapter 4. 80. Institutions should undertake, through their redress processes, to meet survivors’ needs for counselling and psychological care. A survivor’s need for counselling and psychological care should be assessed independently of the institution. 81. Institutions should adopt the purpose of monetary payments recommended in Chapter 7 and be guided by the recommended matrix for assessing monetary payments. 82. In implementing any interim arrangements for institutions to offer and provide redress, institutions should take account of our discussion of the applicability of the redress scheme processes recommended in Chapter 11. 83. Institutions should ensure no deeds of release are required under interim arrangements for institutions to offer and provide redress. 84. If the Australian Government or state and territory governments accept our recommendations and announce that they are working to establish a single national redress scheme or separate state and territory redress schemes, institutions may wish to offer smaller interim or emergency payments as an alternative to offering institutional redress processes as interim arrangements. Limitation periods 85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child. 86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past. 87. State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period. 88. State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented. Royal Commission into Institutional Responses to Child Sexual Abuse 191 Duty of institutions 89. 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. 90. The non-delegable duty should apply to institutions that operate the following facilities or provide the following services and be owed to children who are in the care, supervision or control of the institution in relation to the relevant facility or service: a. residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care b. day and boarding schools and early childhood education and care services, including long day care, family day care, outside school hours services and preschool programs c. disability services for children d. health services for children e. any other facility operated for profit which provides services for children that involve the facility having the care, supervision or control of children for a period of time but not including foster care or kinship care f. any facilities or services operated or provided by religious organisations, including activities or services provided by religious leaders, officers or personnel of religious organisations but not including foster care or kinship care. 91. 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. 92. For the purposes of both the non-delegable duty and the imposition of liability with a reverse onus of proof, the persons associated with the institution should include the institution’s officers, office holders, employees, agents, volunteers and contractors. For religious organisations, persons associated with the institution also include religious leaders, officers and personnel of the religious organisation. 93. State and territory governments should ensure that the non-delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively. 192 Final Report: Preface and executive summary Identifying a proper defendant 94. 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 the 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. 95. The Australian Government and state and territory governments should consider whether there are any unincorporated bodies that they fund directly or indirectly to provide children’s services. If there are, they should consider requiring them to maintain insurance that covers their liability in respect of institutional child sexual abuse claims. Model litigant approaches 96. Government and non-government institutions that receive, or expect to receive, civil claims for institutional child sexual abuse should adopt guidelines for responding to claims for compensation concerning allegations of child sexual abuse. 97. The guidelines should be designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses to claims. 98. The guidelines should include an obligation on the institution to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified. 99. Government and non-government institutions should publish the guidelines they adopt or otherwise make them available to claimants and their legal representatives. Royal Commission into Institutional Responses to Child Sexual Abuse 193 Criminal justice report recommendations (2017) Our approach to criminal justice reforms 1. In relation to child sexual abuse, including institutional child sexual abuse, the criminal justice system should be reformed to ensure that the following objectives are met: a. the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused b. criminal justice responses are available for victims and survivors c. victims and survivors are supported in seeking criminal justice responses. Current police responses 2. Australian governments should refer to the Steering Committee for the Report on Government Services for review the issues of: a. how the reporting framework for police services in the Report on Government Services could be extended to include reporting on child sexual abuse offences b. whether any outcome measures that would be appropriate for police investigations of child sexual abuse offences could be developed and reported on. Issues in police responses Principles for initial police responses 3. Each Australian government should ensure that its policing agency: a. recognises that a victim or survivor’s initial contact with police will be important in determining their satisfaction with the entire criminal justice response and in influencing their willingness to proceed with a report and to participate in a prosecution b. ensures that all police who may come into contact with victims or survivors of institutional child sexual abuse are trained to: i. have a basic understanding of complex trauma and how it can affect people who report to police, including those who may have difficulties dealing with institutions or persons in positions of authority (such as the police) ii. treat anyone who approaches the police to report child sexual abuse with consideration and respect, taking account of any relevant cultural safety issues c. establishes arrangements to ensure that, on initial contact from a victim or survivor, police refer victims and survivors to appropriate support services. 194 Final Report: Preface and executive summary Encouraging reporting 4. To encourage reporting of allegations of child sexual abuse, including institutional child sexual abuse, each Australian government should ensure that its policing agency: a. takes steps to communicate to victims (and their families or support people where victims are children or are particularly vulnerable) that their decision whether to participate in a police investigation will be respected – that is, victims retain the right to withdraw at any stage in the process and to decline to proceed further with police and/or any prosecution b. provides information on the different ways in which victims and survivors can report to police or seek advice from police on their options for reporting or not reporting abuse – this should be in a format that allows institutions and survivor advocacy and support groups and support services to provide it to victims and survivors c. makes available a range of channels to encourage reporting, including specialist telephone numbers and online reporting forms, and provides information about what to expect from each channel of reporting d. works with survivor advocacy and support groups and support services, including those working with people from culturally and linguistically diverse backgrounds and people with disability, to facilitate reporting by victims and survivors e. allows victims and survivors to benefit from the presence of a support person of their choice if they so wish throughout their dealings with police, provided that this will not interfere with the police investigation or risk contaminating evidence f. is willing to take statements from victims and survivors in circumstances where the alleged perpetrator is dead or is otherwise unlikely to be able to be tried. 5. To encourage reporting of allegations of child sexual abuse, including institutional child sexual abuse, among Aboriginal and Torres Strait Islander victims and survivors, each Australian government should ensure that its policing agency: a. takes the lead in developing good relationships with Aboriginal and Torres Strait Islander communities b. provides channels for reporting outside of the community (such as telephone numbers and online reporting forms). 6. To encourage prisoners and former prisoners to report allegations of child sexual abuse, including institutional child sexual abuse, each Australian government should ensure that its policing agency: a. provides channels for reporting that can be used from prison and that allow reports to be made confidentially b. does not require former prisoners to report at a police station. Royal Commission into Institutional Responses to Child Sexual Abuse 195 Police investigations 7. Each Australian government should ensure that its policing agency conducts investigations of reports of child sexual abuse, including institutional child sexual abuse, in accordance with the following principles: a. While recognising the complexity of police rosters, staffing and transfers, police should recognise the benefit to victims and their families and survivors of continuity in police staffing and should take steps to facilitate, to the extent possible, continuity in police staffing on an investigation of a complaint. b. Police should recognise the importance to victims and their families and survivors of police maintaining regular communication with them to keep them informed of the status of their report and any investigation unless they have asked not to be kept informed. c. Particularly in relation to historical allegations of institutional child sexual abuse, police who assess or provide an investigative response to allegations should be trained to: i. be non-judgmental and recognise that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record ii. focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant. 8. State and territory governments should introduce legislation to implement Recommendation 20-1 of the report of the Australian Law Reform Commission and the New South Wales Law Reform Commission Family violence: A national legal response in relation to disclosing or revealing the identity of a mandatory reporter to a law enforcement agency. Investigative interviews for use as evidence in chief 9. Each Australian government should ensure that its policing agency conducts investigative interviewing in relation to reports of child sexual abuse, including institutional child sexual abuse, in accordance with the following principles: a. All police who provide an investigative response (whether specialist or generalist) to child sexual abuse should receive at least basic training in understanding sexual offending, including the nature of child sexual abuse and institutional child sexual abuse offending. b. All police who provide an investigative response (whether specialist or generalist) to child sexual abuse should be trained to interview the complainant in accordance with current research and learning about how memory works in order to obtain the complainant’s memory of the events. 196 Final Report: Preface and executive summary c. The importance of video recorded interviews for children and other vulnerable witnesses should be recognised, as these interviews usually form all, or most, of the complainant’s and other relevant witnesses’ evidence in chief in any prosecution. d. Investigative interviewing of children and other vulnerable witnesses should be undertaken by police with specialist training. The specialist training should focus on: i. a specialist understanding of child sexual abuse, including institutional child sexual abuse, and the developmental and communication needs of children and other vulnerable witnesses ii. skill development in planning and conducting interviews, including use of appropriate questioning techniques. e. Specialist police should undergo refresher training on a periodical basis to ensure that their specialist understanding and skills remain up to date and accord with current research. f. From time to time, experts should review a sample of video recorded interviews with children and other vulnerable witnesses conducted by specialist police for quality assurance and training purposes and to reinforce best-practice interviewing techniques. g. State and territory governments should introduce legislation to remove any impediments, including in relation to privacy concerns, to the use of video recorded interviews so that the relevant police officer, his or her supervisor and any persons engaged by police in quality assurance and training can review video recorded interviews for quality assurance and training purposes. This should not authorise the use of video recorded interviews for general training in a manner that would raise privacy concerns. h. Police should continue to work towards improving the technical quality of video recorded interviews so that they are technically as effective as possible in presenting the complainant’s and other witnesses’ evidence in chief. i. Police should recognise the importance of interpreters, including for some Aboriginal and Torres Strait Islander victims, survivors and other witnesses. j. Intermediaries should be available to assist in police investigative interviews of children and other vulnerable witnesses. Royal Commission into Institutional Responses to Child Sexual Abuse 197 Police charging decisions 10. Each Australian government should ensure that its policing agency makes decisions in relation to whether to lay charges for child sexual abuse offences in accordance with the following principles: a. Recognising that it is important to complainants that the correct charges be laid as early as possible so that charges are not significantly downgraded at or close to trial, police should ensure that care is taken, and that early prosecution advice is sought, where appropriate, in laying charges. b. In making decisions about whether to charge, police should not: i. expect or require corroboration where the victim or survivor’s account does not suggest that there should be any corroboration available ii. rely on the absence of corroboration as a determinative factor in deciding not to charge, where the victim or survivor’s account does not suggest that there should be any corroboration available, unless the prosecution service advises otherwise. 11. The Victorian Government should review the operation of section 401 of the Criminal Procedure Act 2009 (Vic) and consider amending the provision to restrict the awarding of costs against police if it appears that the risk of costs awards might be affecting police decisions to prosecute. The government of any other state or territory that has similar provisions should conduct a similar review and should consider similar amendments. Police responses to reports of historical child sexual abuse 12. Each Australian government should ensure that, if its policing agency does not provide a specialist response to victims and survivors reporting historical child sexual abuse, its policing agency develops and implements a document in the nature of a ‘guarantee of service’ which sets out for the benefit of victims and survivors – and as a reminder to the police involved – what victims and survivors are entitled to expect in the police response to their report of child sexual abuse. The document should include information to the effect that victims and survivors are entitled to: a. be treated by police with consideration and respect, taking account of any relevant cultural safety issues b. have their views about whether they wish to participate in the police investigation respected c. be referred to appropriate support services d. contact police through a support person or organisation rather than contacting police directly if they prefer 198 Final Report: Preface and executive summary e. have the assistance of a support person of their choice throughout their dealings with police unless this will interfere with the police investigation or risk contaminating evidence f. have their statement taken by police even if the alleged perpetrator is dead g. be provided with the details of a nominated person within the police service for them to contact h. be kept informed of the status of their report and any investigation unless they do not wish to be kept informed i. have the police focus on the credibility of the complaint or allegations rather than focusing only on the credibility of the complainant, recognising that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record. Police responses to reports of child sexual abuse made by people with disability 13. Each Australian government should ensure that its policing agency responds to victims and survivors with disability, or their representatives, who report or seek to report child sexual abuse, including institutional child sexual abuse, to police in accordance with the following principles: a. Police who have initial contact with the victim or survivor should be non-judgmental and should not make any adverse assessment of the victim or survivor’s credibility, reliability or ability to make a report or participate in a police investigation or prosecution because of their disability. b. Police who assess or provide an investigative response to allegations made by victims and survivors with disability should focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant, and they should not make any adverse assessment of the victim or survivor’s credibility or reliability because of their disability. c. Police who conduct investigative interviewing should make all appropriate use of any available intermediary scheme, and communication supports, to ensure that the victim or survivor is able to give their best evidence in the investigative interview. d. Decisions in relation to whether to lay charges for child sexual abuse offences should take full account of the ability of any available intermediary scheme, and communication supports, to assist the victim or survivor to give their best evidence when required in the prosecution process. Royal Commission into Institutional Responses to Child Sexual Abuse 199 Police responses and institutions Police communication and advice 14. In order to assist in the investigation of current allegations of institutional child sexual abuse, each Australian government should ensure that its policing agency: a. develops and keeps under review procedures and protocols to guide police and institutions about the information and assistance police can provide to institutions where a current allegation of institutional child sexual abuse is made b. develops and keeps under review procedures and protocols to guide the police, other agencies, institutions and the broader community on the information and assistance police can provide to children and parents and the broader community where a current allegation of institutional child sexual abuse is made. 15. The New South Wales Standard Operating Procedures for Employment Related Child Abuse Allegations and the Joint Investigation Response Team Local Contact Point Protocol should serve as useful precedents for other Australian governments to consider. Blind reporting 16. In relation to blind reporting, institutions and survivor advocacy and support groups should: a. be clear that, where the law requires reporting to police, child protection or another agency, the institution or group or its relevant staff member or official will report as required b. develop and adopt clear guidelines to inform staff and volunteers, victims and their families and survivors, and police, child protection and other agencies as to the approach the institution or group will take in relation to allegations, reports or disclosures it receives that it is not required by law to report to police, child protection or another agency. 17. If a relevant institution or survivor advocacy and support group adopts a policy of reporting survivors’ details to police without survivors’ consent – that is, if it will not make blind reports – it should seek to provide information about alternative avenues for a survivor to seek support if this aspect of the institution or group’s guidelines is not acceptable to the survivor. 18. Institutions and survivor advocacy and support groups that adopt a policy that they will not report the survivor’s details without the survivor’s consent should make a blind report to police in preference to making no report at all. 200 Final Report: Preface and executive summary 19. Regardless of an institution or survivor advocacy and support group’s policy in relation to blind reporting, the institution or group should provide survivors with: a. information to inform them about options for reporting to police b. support to report to police if the survivor is willing to do so. 20. Police should ensure that they review any blind reports they receive and that they are available as intelligence in relation to any current or subsequent police investigations. If it appears that talking to the survivor might assist with a police investigation, police should contact the relevant institution or survivor advocacy and support group, and police and the institution or group should cooperate to try to find a way in which the survivor will be sufficiently supported so that they are willing to speak to police. Persistent child sexual abuse offences 21. Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that: a. the actus reus is the maintaining of an unlawful sexual relationship b. an unlawful sexual relationship is established by more than one unlawful sexual act c. the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury, jurors need not be satisfied of the same unlawful sexual acts d. the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed e. on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application. 22. The draft provision in Appendix H provides for the recommended reform. Legislation to the effect of the draft provision should be introduced. 23. State and territory governments (other than Victoria) should consider introducing legislation to establish legislative authority for course of conduct charges in relation to child sexual abuse offences if legislative authority may assist in using course of conduct charges. 24. State and territory governments should consider providing for any of the two or more unlawful sexual acts that are particularised for the maintaining an unlawful sexual relationship offence to be particularised as courses of conduct. Royal Commission into Institutional Responses to Child Sexual Abuse 201 Grooming offences 25. To the extent they do not already have a broad grooming offence, each state and territory government should introduce legislation to amend its criminal legislation to adopt a broad grooming offence that captures any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence. 26. Each state and territory government (other than Victoria) should introduce legislation to extend its broad grooming offence to the grooming of persons other than the child. Position of authority offences 27. State and territory governments should review any position of authority offences applying in circumstances where the victim is 16 or 17 years of age and the offender is in a position of authority (however described) in relation to the victim. If the offences require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), states and territories should introduce legislation to amend the offences so that the existence of the relationship is sufficient. 28. State and territory governments should review any provisions allowing consent to be negatived in the event of sexual contact between a victim of 16 or 17 years of age and an offender who is in a position of authority (however described) in relation to the victim. If the provisions require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), state and territory governments should introduce legislation to amend the provisions so that the existence of the relationship is sufficient. 29. If there is a concern that one or more categories of persons in a position of authority (however described) may be too broad and may catch sexual contact which should not be criminalised when it is engaged in by such persons with children above the age of consent, state and territory governments could consider introducing legislation to establish defences such as a similar-age consent defence. Limitation periods and immunities 30. State and territory governments should introduce legislation to remove any remaining limitation periods, or any remaining immunities, that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards. 31. Without limiting recommendation 30, the New South Wales Government should introduce legislation to give the repeal of the limitation period in section 78 of the Crimes Act 1900 (NSW) retrospective effect. 202 Final Report: Preface and executive summary Failure to report offence Moral or ethical duty to report to police 32. Any person associated with an institution who knows or suspects that a child is being or has been sexually abused in an institutional context should report the abuse to police (and, if relevant, in accordance with any guidelines the institution adopts in relation to blind reporting under recommendation 16). Failure to report offence 33. Each state and territory government should introduce legislation to create a criminal offence of failure to report targeted at child sexual abuse in an institutional context as follows: a. The failure to report offence should apply to any adult person who: i. is an owner, manager, staff member or volunteer of a relevant institution – this includes persons in religious ministry and other officers or personnel of religious institutions ii. otherwise requires a Working with Children Check clearance for the purposes of their role in the institution but it should not apply to individual foster carers or kinship carers. b. The failure to report offence should apply if the person fails to report to police in circumstances where they know, suspect, or should have suspected (on the basis that a reasonable person in their circumstances would have suspected and it was criminally negligent for the person not to suspect), that an adult associated with the institution was sexually abusing or had sexually abused a child. c. Relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster and kinship care services should be included (but not individual foster carers or kinship carers). Facilities and services provided by religious institutions, and any services or functions performed by persons in religious ministry, should be included. Royal Commission into Institutional Responses to Child Sexual Abuse 203 d. If the knowledge is gained or the suspicion is or should have been formed after the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply: i. A child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years). ii. The person who is known to have abused a child or is or should have been suspected of abusing a child is either: • still associated with the institution • known or believed to be associated with another relevant institution. iii. The knowledge gained or the suspicion that is or should have been formed relates to abuse that may have occurred within the previous 10 years. e. If the knowledge is gained or the suspicion is or should have been formed before the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply: i. A child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years) and is still associated with the institution (that is, they are still in the care, supervision or control of the institution). ii. The person who is known to have abused a child or is or should have been suspected of abusing a child is either: • still associated with the institution • known or believed to be associated with another relevant institution. Interaction with regulatory reporting 34. State and territory governments should: a. ensure that they have systems in place in relation to their mandatory reporting scheme and any reportable conduct scheme to ensure that any reports made under those schemes that may involve child sexual abuse offences are brought to the attention of police b. include appropriate defences in the failure to report offence to avoid duplication of reporting under mandatory reporting and any reportable conduct schemes. 204 Final Report: Preface and executive summary Treatment of religious confessions 35. Each state and territory government should ensure that the legislation it introduces to create the criminal offence of failure to report recommended in recommendation 33 addresses religious confessions as follows: a. The criminal offence of failure to report should apply in relation to knowledge gained or suspicions that are or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession. b. The legislation should exclude any existing excuse, protection or privilege in relation to religious confessions to the extent necessary to achieve this objective. c. Religious confession should be defined to include a confession about the conduct of a person associated with the institution made by a person to a second person who is in religious ministry in that second person’s professional capacity according to the ritual of the church or religious denomination concerned. Failure to protect offence 36. State and territory governments should introduce legislation to create a criminal offence of failure to protect a child within a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution as follows: a. The offence should apply where: i. an adult person knows that there is a substantial risk that another adult person associated with the institution will commit a sexual offence against: • a child under 16 • a child of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child ii. the person has the power or responsibility to reduce or remove the risk iii. the person negligently fails to reduce or remove the risk. b. The offence should not be able to be committed by individual foster carers or kinship carers. c. Relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster care and kinship care services should be included, but individual foster carers and kinship carers should not be included. Facilities and services provided by religious institutions, and any service or functions performed by persons in religious ministry, should be included. Royal Commission into Institutional Responses to Child Sexual Abuse 205 d. State and territory governments should consider the Victorian offence in section 49C of the Crimes Act 1958 (Vic) as a useful precedent, with an extension to include children of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child. Issues in prosecution responses Principles for prosecution responses 37. All Australian Directors of Public Prosecutions, with assistance from the relevant government in relation to funding, should ensure that prosecution responses to child sexual abuse are guided by the following principles: a. All prosecution staff who may have professional contact with victims of institutional child sexual abuse should be trained to have a basic understanding of the nature and impact of child sexual abuse – and institutional child sexual abuse in particular – and how it can affect people who are involved in a prosecution process, including those who may have difficulties dealing with institutions or person in positions of authority. b. While recognising the complexity of prosecution staffing and court timetables, prosecution agencies should recognise the benefit to victims and their families and survivors of continuity in prosecution team staffing and should take steps to facilitate, to the extent possible, continuity in staffing of the prosecution team involved in a prosecution. c. Prosecution agencies should continue to recognise the importance to victims and their families and survivors of the prosecution agency maintaining regular communication with them to keep them informed of the status of the prosecution unless they have asked not to be kept informed. d. Witness Assistance Services should be funded and staffed to ensure that they can perform their task of keeping victims and their families and survivors informed and ensuring that they are put in contact with relevant support services, including staff trained to provide a culturally appropriate service for Aboriginal and Torres Strait Islander victims and survivors. Specialist services for children should also be considered. e. Particularly in relation to historical allegations of institutional child sexual abuse, prosecution staff who are involved in giving early charge advice or in prosecuting child sexual abuse matters should be trained to: i. be non-judgmental and recognise that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record ii. focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant. 206 Final Report: Preface and executive summary f. Prosecution agencies should recognise that children with disability are at a significantly increased risk of abuse, including child sexual abuse. Prosecutors should take this increased risk into account in any decisions they make in relation to prosecuting child sexual abuse offences. 38. Each state and territory government should facilitate the development of standard material to provide to complainants or other witnesses in child sexual abuse trials to better inform them about giving evidence. The development of the standard material should be led by Directors of Public Prosecutions in consultation with Witness Assistance Services, public defenders (where available), legal aid services and representatives of the courts to ensure that it: a. is likely to be of adequate assistance for complainants who are not familiar with criminal trials and giving evidence b. is fair to the accused as well as to the prosecution c. does not risk rehearsing or coaching the witness. Charging and plea decisions 39. All Australian Directors of Public Prosecutions should ensure that prosecution charging and plea decisions in prosecutions for child sexual abuse offences are guided by the following principles: a. Prosecutors should recognise the importance to complainants of the correct charges being laid as early as possible so that charges are not significantly downgraded or withdrawn at or close to trial. Prosecutors should provide early advice to police on appropriate charges to lay when such advice is sought. b. Regardless of whether such advice has been sought, prosecutors should confirm the appropriateness of the charges as early as possible once they are allocated the prosecution to ensure that the correct charges have been laid and to minimise the risk that charges will have to be downgraded or withdrawn closer to the trial date. c. While recognising the benefit of securing guilty pleas, prosecution agencies should also recognise that it is important to complainants – and to the criminal justice system – that the charges for which a guilty plea is accepted reasonably reflect the true criminality of the abuse they suffered. d. Prosecutors must endeavour to ensure that they allow adequate time to consult the complainant and the police in relation to any proposal to downgrade or withdraw charges or to accept a negotiated plea and that the complainant is given the opportunity to obtain assistance from relevant witness assistance officers or other advocacy and support services before they give their opinion on the proposal. If the complainant is a child, prosecutors must endeavour to ensure that they give the child the opportunity to consult their carer or parents unless the child does not wish to do so. Royal Commission into Institutional Responses to Child Sexual Abuse 207 DPP complaints and oversight mechanisms 40. Each Australian Director of Public Prosecutions should: a. have comprehensive written policies for decision-making and consultation with victims and police b. publish all policies online and ensure that they are publicly available c. provide a right for complainants to seek written reasons for key decisions, without detracting from an opportunity to discuss reasons in person before written reasons are provided. 41. Each Australian Director of Public Prosecutions should establish a robust and effective formalised complaints mechanism to allow victims to seek internal merits review of key decisions. 42. Each Australian Director of Public Prosecutions should establish robust and effective internal audit processes to audit their compliance with policies for decision-making and consultation with victims and police. 43. Each Australian Director of Public Prosecutions should publish the existence of their complaints mechanism and internal audit processes and data on their use and outcomes online and in their annual reports. Tendency and coincidence and joint trials 44. In order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials. 45. Tendency or coincidence evidence about the defendant in a child sexual offence prosecution should be admissible: a. if the court thinks that the evidence will, either by itself or having regard to the other evidence, be ‘relevant to an important evidentiary issue’ in the proceeding, with each of the following kinds of evidence defined to be ‘relevant to an important evidentiary issue’ in a child sexual offence proceeding: i. evidence that shows a propensity of the defendant to commit particular kinds of offences if the commission of an offence of the same or a similar kind is in issue in the proceeding 208 Final Report: Preface and executive summary ii. evidence that is relevant to any matter in issue in the proceeding if the matter concerns an act or state of mind of the defendant and is important in the context of the proceeding as a whole b. unless, on the application of the defendant, the court thinks, having regard to the particular circumstances of the proceeding, that both: i. admission of the evidence is more likely than not to result in the proceeding being unfair to the defendant ii. if there is a jury, the giving of appropriate directions to the jury about the relevance and use of the evidence will not remove the risk. 46. Common law principles or rules that restrict the admission of propensity or similar fact evidence should be explicitly abolished or excluded in relation to the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. 47. Issues of concoction, collusion or contamination should not affect the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. The court should determine admissibility on the assumption that the evidence will be accepted as credible and reliable, and the impact of any evidence of concoction, collusion or contamination should be left to the jury or other fact-finder. 48. Tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt. 49. Evidence of: a. the defendant’s prior convictions b. acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted) should be admissible as tendency or coincidence evidence if it otherwise satisfies the test for admissibility of tendency or coincidence evidence about a defendant in a child sexual offence prosecution. 50. Australian governments should introduce legislation to make the reforms we recommend to the rules governing the admissibility of tendency and coincidence evidence. 51. The draft provisions in Appendix N provide for the recommended reforms for Uniform Evidence Act jurisdictions. Legislation to the effect of the draft provisions should be introduced for Uniform Evidence Act jurisdictions and non–Uniform Evidence Act jurisdictions. Royal Commission into Institutional Responses to Child Sexual Abuse 209 Evidence of victims and survivors Prerecording 52. State and territory governments should ensure that the necessary legislative provisions and physical resources are in place to allow for the prerecording of the entirety of a witness’s evidence in child sexual abuse prosecutions. This should include both: a. in summary and indictable matters, the use of a prerecorded investigative interview as some or all of the witness’s evidence in chief b. in matters tried on indictment, the availability of pre-trial hearings to record all of a witness’s evidence, including cross-examination and re-examination, so that the evidence is taken in the absence of the jury and the witness need not participate in the trial itself. 53. Full prerecording should be made available for: a. all complainants in child sexual abuse prosecutions b. any other witnesses who are children or vulnerable adults c. any other prosecution witness that the prosecution considers necessary. 54. Where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure. 55. State and territory governments should work with courts to improve the technical quality of closed circuit television and audiovisual links and the equipment used and staff training in taking and replaying prerecorded and remote evidence. Recording 56. State and territory governments should introduce legislation to require the audiovisual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual abuse prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness’s evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a prerecorded hearing. 57. State and territory governments should ensure that the courts are adequately resourced to provide this facility, in terms of both the initial recording and its use in any subsequent trial or retrial. 210 Final Report: Preface and executive summary 58. If it is not practical to record evidence given live in court in a way that is suitable for use in any subsequent trial or retrial, prosecution guidelines should require that the fact that a witness may be required to give evidence again in the event of a retrial be discussed with witnesses when they make any choice as to whether to give evidence via prerecording, closed circuit television or in person. Intermediaries 59. State and territory governments should establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales which are available to any prosecution witness with a communication difficulty in a child sexual abuse prosecution. Governments should ensure that the scheme: a. requires intermediaries to have relevant professional qualifications to assist in communicating with vulnerable witnesses b. provides intermediaries with training on their role and in understanding that their duty is to assist the court to communicate with the witness and to be impartial c. makes intermediaries available at both the police interview stage and trial stage d. enables intermediaries to provide recommendations to police and the court on how best to communicate with the witness and to intervene in an interview or examination where they observe a communication breakdown. 60. State and territory governments should work with their courts administration to ensure that ground rules hearings are able to be held – and are in fact held – in child sexual abuse prosecutions to discuss the questioning of prosecution witnesses with specific communication needs, whether the questioning is to take place via a prerecorded hearing or during the trial. This should be essential where a witness intermediary scheme is in place and should allow, at a minimum, a report from an intermediary to be considered. Other special measures 61. The following special measures should be available in child sexual abuse prosecutions for complainants, vulnerable witnesses and other prosecution witnesses where the prosecution considers it necessary: a. giving evidence via closed circuit television or audiovisual link so that the witness is able to give evidence from a room away from the courtroom b. allowing the witness to be supported when giving evidence, whether in the courtroom or remotely, including, for example, through the presence of a support person or a support animal or by otherwise creating a more child-friendly environment Royal Commission into Institutional Responses to Child Sexual Abuse 211 c. if the witness is giving evidence in court, using screens, partitions or one-way glass so that the witness cannot see the accused while giving evidence d. clearing the public gallery of a courtroom during the witness’s evidence e. the judge and counsel removing their wigs and gowns. Courtroom issues 62. State and territory governments should introduce legislation to allow a child’s competency to give evidence in child sexual abuse prosecutions to be tested as follows: a. Where there is any doubt about a child’s competence to give evidence, a judge should establish the child’s ability to understand basic questions asked of them by asking simple, non-theoretical questions – for example, about their age, school, family et cetera. b. Where it does not appear that the child can give sworn evidence, the judge should simply ask the witness for a promise to tell the truth and allow the examination of the witness to proceed. Use of interpreters 63. State and territory governments should provide adequate interpreting services such that any witness in a child sexual abuse prosecution who needs an interpreter is entitled to an interpreter who has sufficient expertise in their primary language, including sign language, to provide an accurate and impartial translation. Judicial directions and informing juries Reforming judicial directions 64. State and territory governments should consider or reconsider the desirability of partial codification of judicial directions now that Victoria has established a precedent from which other jurisdictions could develop their own reforms. 65. Each state and territory government should review its legislation and introduce any amending legislation necessary to ensure that it has the following provisions in relation to judicial directions and warnings: 212 Final Report: Preface and executive summary a. Delay and credibility: Legislation should provide that: i. there is no requirement for a direction or warning that delay affects the complainant’s credibility ii. the judge must not direct, warn or suggest to the jury that delay affects the complainant’s credibility unless the direction, warning or suggestion is requested by the accused and is warranted on the evidence in the particular circumstances of the trial iii. in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’. b. Delay and forensic disadvantage: Legislation should provide that: i. there is no requirement for a direction or warning as to forensic disadvantage to the accused ii. the judge must not direct, warn or suggest to the jury that delay has caused forensic disadvantage to the accused unless the direction, warning or suggestion is requested by the accused and there is evidence that the accused has suffered significant forensic disadvantage iii. the mere fact of delay is not sufficient to establish forensic disadvantage iv. in giving any direction, warning or comment, the judge should inform the jury of the nature of the forensic disadvantage suffered by the accused v. in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’. c. Uncorroborated evidence: Legislation should provide that the judge must not direct, warn or suggest to the jury that it is ‘dangerous or unsafe to convict’ on the uncorroborated evidence of the complainant or that the uncorroborated evidence of the complainant should be ‘scrutinised with great care’. d. Children’s evidence: Legislation should provide that: i. the judge must not direct, warn or suggest to the jury that children as a class are unreliable witnesses ii. the judge must not direct, warn or suggest to the jury that it would be ‘dangerous or unsafe to convict’ on the uncorroborated evidence of a child or that the uncorroborated evidence of a child should be ‘scrutinised with great care’ iii. the judge must not give a direction or warning about, or comment on, the reliability of a child’s evidence solely on account of the age of the child. 66. The New South Wales Government, the Queensland Government and the government of any other state or territory in which Markuleski directions are required should consider introducing legislation to abolish any requirement for such directions. Royal Commission into Institutional Responses to Child Sexual Abuse 213 Improving information for judges and legal professionals 67. State and territory governments should support and encourage the judiciary, public prosecutors, public defenders, legal aid and the private Bar to implement regular training and education programs for the judiciary and legal profession in relation to understanding child sexual abuse and current social science research in relation to child sexual abuse. 68. Relevant Australian governments should ensure that bodies such as: a. the Australasian Institute of Judicial Administration b. the National Judicial College of Australia c. the Judicial Commission of New South Wales d. the Judicial College of Victoria are adequately funded to provide leadership in making relevant information and training available in the most effective forms to the judiciary and, where relevant, the broader legal profession so that they understand and keep up to date with current social science research that is relevant to understanding child sexual abuse. Improving information for jurors 69. In any state or territory where provisions such as those in sections 79(2) and 108C of the Uniform Evidence Act or their equivalent are not available, the relevant government should introduce legislation to allow for expert evidence in relation to the development and behaviour of children generally and the development and behaviour of children who have been victims of child sexual abuse offences. 70. Each state and territory government should lead a process to consult the prosecution, defence, judiciary and academics with relevant expertise in relation to judicial directions containing educative information about children and the impact of child sexual abuse, with a view to settling standard directions and introducing legislation as soon as possible to authorise and require the directions to be given. The National Child Sexual Assault Reform Committee’s recommended mandatory judicial directions and the Victorian Government’s proposed directions on inconsistencies in the complainant’s account should be the starting point for the consultation process, subject to the removal of the limitation in the third direction recommended by the National Child Sexual Assault Reform Committee in relation to children’s responses to sexual abuse so that it can apply regardless of the complainant’s age at trial. 71. In advance of any more general codification of judicial directions, each state and territory government should work with the judiciary to identify whether any legislation is required to permit trial judges to assist juries by giving relevant directions earlier in the trial or to otherwise assist juries by providing them with more information about the issues in the trial. If legislation is required, state and territory governments should introduce the necessary legislation. 214 Final Report: Preface and executive summary Delays and case management 72. Each state and territory government should work with its courts, prosecution, legal aid and policing agencies to ensure that delays are reduced and kept to a minimum in prosecutions for child sexual abuse offences, including through measures to encourage: a. the early allocation of prosecutors and defence counsel b. the Crown – including subsequently allocated Crown prosecutors – to be bound by early prosecution decisions c. appropriate early guilty pleas d. case management and the determination of preliminary issues before trial. 73. In those states and territories that have a qualified privilege in relation to sexual assault communications, the relevant state or territory government should work with its courts, prosecution and legal aid agencies to implement any necessary procedural or case management reforms to ensure that complainants are effectively able to claim the privilege without risking delaying the trial. Sentencing Excluding good character as a mitigating factor 74. All state and territory governments (other than New South Wales and South Australia) should introduce legislation to provide that good character be excluded as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending, similar to that applying in New South Wales and South Australia. Cumulative and concurrent sentencing 75. State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed. Royal Commission into Institutional Responses to Child Sexual Abuse 215 Sentencing standards in historical cases 76. State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed. Victim impact statements 77. State and territory governments, in consultation with their respective Directors of Public Prosecutions, should improve the information provided to victims and survivors of child sexual abuse offences to: a. give them a better understanding of the role of the victim impact statement in the sentencing process b. better prepare them for making a victim impact statement, including in relation to understanding the sort of content that may result in objection being taken to the statement or parts of it. 78. State and territory governments should ensure that, as far as reasonably practicable, special measures to assist victims of child sexual abuse offences to give evidence in prosecutions are available for victims when they give a victim impact statement, if they wish to use them. Appeals 79. State and territory governments should introduce legislation, where necessary, to expand the Director of Public Prosecution’s right to bring an interlocutory appeal in prosecutions involving child sexual abuse offences so that the appeal right: a. applies to pre-trial judgments or orders and decisions or rulings on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case b. is not subject to a requirement for leave c. extends to ‘no case’ rulings at trial. 80. State and territory governments should work with their appellate court and the Director of Public Prosecutions to ensure that the court is sufficiently well resourced to hear and determine interlocutory appeals in prosecutions involving child sexual abuse offences in a timely manner. 216 Final Report: Preface and executive summary 81. Directors of Public Prosecutions should amend their prosecution guidelines, where necessary, in relation to the decision as to whether there should be a retrial following a successful conviction appeal in child sexual abuse prosecutions. The guidelines should require that the prosecution consult the complainant and relevant police officer before the Director of Public Prosecutions decides whether to retry a matter. 82. State and territory governments should ensure that a relevant government agency, such as the Office of the Director of Public Prosecutions, is monitoring the number, type and success rate of appeals in child sexual abuse prosecutions and the issues raised to: a. identify areas of the law in need of reform b. ensure any reforms – including reforms arising from the Royal Commission’s recommendations in relation to criminal justice, if implemented – are working as intended. Juvenile offenders 83. State and territory governments (other than the Northern Territory) should give further consideration to whether the abolition of the presumption that a male under the age of 14 years is incapable of having sexual intercourse should be given retrospective effect and whether any immunity which has arisen as a result of the operation of the presumption should be abolished. State and territory governments (other than the Northern Territory) should introduce any legislation they consider necessary as a result of this consideration. 84. State and territory governments should review their legislation – and if necessary introduce amending legislation – to ensure that complainants in child sexual abuse prosecutions do not have to give evidence on any additional occasion in circumstances where the accused, or one of two or more co-accused, is a juvenile at the time of prosecution or was a juvenile at the time of the offence. Criminal justice and regulatory responses 85. State and territory governments should keep the interaction of: a. their legislation relevant to regulatory responses to institutional child sexual abuse b. their crimes legislation and the crimes legislation of all other Australian jurisdictions, particularly in relation to child sexual abuse offences and sex offender registration under regular review to ensure that their regulatory responses work together effectively with their relevant crimes legislation and the relevant crimes legislation of all other Australian jurisdictions in the interests of responding effectively to institutional child sexual abuse. Royal Commission into Institutional Responses to Child Sexual Abuse 217 Commonwealth of Australia Royal Commission into Institutional Responses to Child Sexual Abuse ISBN 978-1-925622-48-5 Published December 2017 218 Final Report: Preface and executive summary