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Published: 13 May 2011

Litigation has failed the victims of institutional abuse

It's time the Government set up a compensation fund.

On 16 November 2009, former Prime Minister Kevin Rudd apologised to Forgotten Australians and to the child migrants. Kevin Rudd had already apologised to the Stolen Generations on 13 February 2008. This Apology was one of the first major initiatives of the new Rudd Labour Government. It was an apology that was embraced by the Australian people and an apology for which we had waited too long.

Three harrowing reports on the lives of children in care, including Bringing Them Home, dealing with the Stolen Generations1, the child migrant report Lost Innocents2 and the institutional abuse report Forgotten Australians3 have outlined in horrifying detail that abuse to which many of these children were subjected.

Kevin Rudd's apology was the last in a series of apologies to members of the Stolen Generations, Forgotten Australians and child migrants that had begun in 1997 when NSW Premier Bob Carr apologised to members of the Stolen Generations. All state parliaments subsequently issued apologies to members of the Stolen Generations.

Over the next decade state parliaments also issued apologies to the Forgotten Australians. For example, in August 2006, the then Premier of Victoria, Steve Bracks, issued a public apology 'about some of the past practices in the provision of home care services in Victoria,' which was meant to be an apology to Victorian children abused in care.

So the question needs to be asked, 'What difference does an apology make and is it enough?'

The Stolen Generations

The Stolen Generations is a generic term for the many thousands of Aboriginal children who in most cases were forcibly removed from their families to be brought up in Homes or to be fostered to white families.

Removing children from their families was official government policy in Australia until 1969. Even though it was not until 1909 that that removal was legally sanctioned with the passing of the Aborigines Protection Act which gave the Aborigines Protection Board power to remove children, history shows that aboriginal children were removed and used as slave labour from the earliest days of white settlement.4

The practise continued unofficially beyond 1969 when Aboriginal children were still being removed from their parents and placed in Institutions until the last of these institutions closed in the mid to late 80s.

The case of Cubillo v The Commonwealth of Australia5, and the related claim brought by Mr Gunner, was the first serious legal attempt to recognise the wrongs done to the Stolen Generations. If these cases had been successful, it was anticipated that there would have been mass litigation by Aboriginal children who had been 'wrongfully' removed or in the alternative that the then Howard Government would be forced to acknowledge these wrongs (which John Howard steadfastly refused to do, even refusing to make that smallest of gestures, which was to apologise).

The facts were that Mrs Cubillo and Mr Gunner were removed from their families as children and placed in Homes for Aboriginal children. Mrs Cubillo and Mr Gunner argued that their removal and detention constituted a breach of the duty of care that was owed to them.

The plaintiff's arguments failed on all counts.

These cases clearly highlight why litigation can be the wrong tool for seeking justice. Indeed, even if Mr Cubillo and Mrs Gunner had been successful in their claims, so much of their loss would not have been recognised under the heads of damage of our common law system i.e. our tort law does not recognise loss of family, loss of culture and loss of language and yet for many members of the Stolen Generations these losses are the most painful and the most important to be acknowledged.

Child Migrants

Between 1922 and 1967 about 150,000 children with an average age of eight years and nine months were shipped from Great Britain to help populate the British Dominions of Canada, Rhodesia, New Zealand and Australia with 'good white stock'. Estimates of the number of children sent to Australia vary from 5,000 to 10,000, most of whom were sent to charitable and religious institutions.6

Many of these children will tell you that they were lied to regarding their birth families and discouraged from attempting to contact their mothers or siblings. Many were separated from their brothers or sisters on arrival in Australia and may have later found themselves in the same home as a brother or sister but no one told them that they were siblings. Absolutely no attempt was made to ensure that siblings remained together and that family bonds were maintained.

The truth is that many of these children suffered horrific abuse and deprivation. Added to this was their isolation from everything they had known as children and total loss of any family and cultural connection in circumstances, which were not dissimilar to the members of the Stolen Generations.

The Queensland Government issued a formal apology to Child migrants following the findings of the Forde Inquiry which was handed down in 1999. This inquiry revealed that Child migrants suffered horrific abuse in Queensland institutions. The Western Australian Government also apologised in August 1998.

In 1997 the British House of Commons Health Committee accepted that responsibility for matters relating to the welfare of former British child migrants rested with the British Department of Health. In December 1998 the Health Secretary Frank Dobson accepted the report's main recommendations. He accepted the policy had been misguided and promised assistance to former child migrants by setting up a central database of information in the UK to help them trace their records and a Support Fund of £1 million over three years to help pay for family reunions7. Similar schemes were set up in Australia to pay for counselling and travel for family reunion. Sadly, by the time that families were located, many parents and siblings had passed away.

Forgotten Australians

This term refers to Australian children who were removed from their families throughout the last century and placed in care, mostly in institutions run by state governments, welfare agencies, philanthropic organisations and churches.

They were largely treated as criminals, even though their only crime was that they came from parents who were poor, mentally or physically ill or who simply could not care for their children because they worked long hours in a time when there was little or no support for struggling parents.

Each of the world wars also resulted in family break up. Mothers were left to care for children whilst their husbands were overseas, or dead, or injured and traumatised by their experiences in war. The inevitable result was that children were removed often for the most inadequate reasons including truancy, 'likely to lapse into a life of vice or crime' or for neglect.

Whilst there is no doubt that many of these children were experiencing abuse and neglect at home, they were removed to be given better opportunities. For many of these children it appears that their experiences in care were far worse than anything they would have experienced had they been left with their parents.

This group has now had their apology but they are still waiting for a meaningful response to the Senate Recommendations, which included the following:

  • That the States consider amending legislation to abolish the operation of the Statute of Limitations in cases of institutional childhood abuse
  • That the Commonwealth of Australia set up a National Reparation Fund

The late Jim Bacon, former Premier of Tasmania, set up the first redress fund for former wards of the state in 2004. In 2007, the then Premier Mr. Lennon announced the first (and only) compensation fund for members of the Stolen Generations.

The Queensland Government announced ex gratia payments for abused wards in 2007 as did Western Australia which set up Australia's most generous redress fund for children abused in state care, which specifically includes members of the Stolen Generations. The WA scheme allowed for ex gratia payments of up to $80,000.00, compared to up to $60,000 in Tasmania and $40,000 under the Queensland system.

Sadly, in July of 2009 the Western Australian Government announced that they were reducing the maximum payment of $80,000 to $45,000.

In South Australia, the Mullighan Report8 was handed down after three years of hearings and at a cost of several million dollars. Mr. Mullighan found that children in care in South Australia had suffered horrific sexual abuse and that there was a continuing failure of the state to protect the children in its care.

Why do we need redress funds?

Limitation Periods

One of the major barriers to successfully suing in these claims is the Statute of Limitations. The nature of the injuries suffered by potential claimants is that even though the victims are clearly aware of the abuse, it often takes decades before survivors of abuse have the psychological fortitude to deal with their trauma.

Often, those most severely damaged have spent years self medicating, dealing with their distress by turning to drugs and/or alcohol. Others spend years in denial and often there will be a critical event, which will cause them to take action eg a child of their own reaching the age when they were first abused.

The problem is of course that limitation periods in Australia generally start to run from the time the claimant became 'aware' that they had suffered an 'injury.'

In Rundle v the Salvation Army & Anor9 an application was made by the plaintiff for an extension of time within which to sue the Salvation Army and Mr Ellis who was a carer in the Salvation Army Home where Mr Rundle was placed. Mr Rundle alleged that he had been repeatedly sexually abused by Ellis and by a number of other residents and that his complaints of these assaults had been ignored. Mr Rundle gave evidence that he had been sexually abused hundreds of time whilst in the care of the Salvation Army at the Eden Park Boy's Home in the 1960s. Mr Rundle first lodged his claim in March of 2003. The trial judge granted an extension of time and this decision was appealed by the Salvation Army. In 2007, the Supreme Court of NSW granted Mr Rundle an extension of time within which to sue for damages. Some 6 years later Mr Rundle's substantive claim remains unresolved.

The case that in cases of historical sexual abuse, even if the application for an extension of time is ultimately successful (and this is a big 'If') the time and costs involved in seeking and obtaining the extension of time underline yet again why litigation is not the answer in cases of institutional abuse.

Proving Injury and Liability

Even if an extension of time is granted, claims for damages face other significant impediments. In cases of sheer neglect i.e. a failure to adequately feed, clothe, nurture, educate or lack of support services on release, it is often difficult to formulate a cause of action recognised by our tort law.

In other cases, where negligence and breach of duty can be proved, there are causation issues. For example, defendants often argue that it is not the abuse that occurred whilst claimants were wards of the state, which has caused the injury. Inevitably most children were removed because they came from poor, dysfunctional or abusive families. Many went on to lead dysfunctional or abusive lives after their release from wardship.

How then do you 'unscramble the eggs' and identify the cause of any ongoing symptoms, psychological injury, loss or damage.

Vicarious Liability

Where injury and breach of duty can be established, the argument will then centre on whether notwithstanding the abuse, the entity in whose care the child was placed can be held legally liable for the conduct of its agents or employees.

An organisation does not rape a child. Individuals perpetrate the abuse. Accordingly, when these claims are brought the organization will most likely argue that it did not know that the conduct was occurring and will simply seek to blame the individual abuser.

In 2003, the High Court considered the extent to which authorities could be liable in negligence where there was no allegation of fault by the authority but where injury had occurred as a result of the misconduct of an employee. The High Court found that a non-delegable duty of care did not extend to illegal conduct or conduct where an employee was pursuing a 'frolic of their own'.10 Further, in cases of clerical abuse, Churches may argue that a priest, brother or nun was not even an employee and therefore they cannot be held vicariously liable.11

The Cost of Litigation

The other significant impediment faced by potential claimants is the cost of litigation.

These cases are incredibly risky because of the issues outlined above. In addition, the churches' and government lawyers often play hardball, so the decision to issue is a very hard one.

Whilst the Catholic Church and other religious institutions have set up compensation panels or informal processes to settle these claims, money is always paid with a denial of liability. Apologies are extremely general. Until the churches were shamed into not doing so, confidentiality was invariably required as a term of settlement, which left claimants feeling demeaned and that all they'd received was 'hush money'.

Religious Institutions

Many wards of the state were placed in the care of churches and religious institutions in circumstances where it is clear that the state governments who were the legal guardians of these children essentially abdicated all responsibility.

The Catholic Church and its religious orders, the Presbyterian & Methodist (now Uniting) Church, the Anglican Church and the Salvation Army ran many such institutions, as did other religious and philanthropic organizations.

It may be that successive governments mistakenly thought that having placed the children in the 'best' possible care i.e. in the hands of God, it was not necessary to inquire further. The fact is that there were no adequate systems for the independent auditing or inspection of these facilities or where there were systems, they were ignored.

The Senate Reports and State Inquiries have demonstrated that some of the worst abuses occurred in homes run by religious institutions. Serial perpetrators were allowed to remain in the homes for decades. Complaints were ignored or, even worse, children suffered severe physical punishment and in some cases solitary confinement for daring to complain. Other times complaints were dealt with by moving perpetrators from one home to the next. Religious institutions in particular were ill placed to deal with complaints of sexual abuse and a culture existed in many institutions of denial and cover up. Today many churches have had to acknowledge that the children in their care were subjected to horrific abuse.

In the United States, the Pope recently apologised to victims of sexual abuse at the hands of Catholic Priests. This is following payouts of more than $2 billion and the bankrupting of six Parishes of the Catholic Church who have been sued in relation to these complaints.

The Pope has also apologised to Australian victims of clerical sexual abuse. However, the Catholic Church in this country is cynically hiding behind a corporate veil that in effect has resulted in immunity from many actions relating to historical sexual abuse.

Despite these apologies, the reality is that in Australia, many churches have organised their affairs so that they effectively cannot be sued in cases of historical abuse. In a case heard by the Court of Appeal of the Supreme Court of NSW12 the Church argued that there was no legal entity that could be sued by Mr. Ellis in relation to his alleged sexual abuse at the hands of a Priest.

This claim was originally brought by a Mr. Ellis against the Trustees of the Roman Catholic Church and against His Eminence Cardinal George Pell Archbishop of Sydney. Mr. Ellis alleged that he was sexually assaulted by an assistant priest at Bass Hill Parish in Sydney between 1974 and 1979. The trial Judge found that the Trustees of the Roman Catholic Church could be sued and granted an extension of time to Mr. Ellis to allow him to pursue his claim.

This decision was appealed by the Trustees of the Roman Catholic Church. Even though the Church conceded on appeal that the evidence filed by the Plaintiff established an arguable case, it nevertheless argued that the claim should be dismissed on the basis that there was no legal entity that could be sued.

In November of 2007, the High Court agreed with the Catholic Church and refused special leave to appeal. This means that the legal position is now clear and the Catholic Church in NSW (and by extension in all Australian states where Churches have organised their affairs in a similar manner) is immune from litigation in many cases of past sexual abuse even in circumstances where it is clear that the church knew or should have known that children in its care were being abused and failed to act.13

Class Actions

Class or group actions would seem to be the best vehicle for pursuing these claims and certainly, there is much to recommend a class action if it was viable. There are multiple claimants and a handful of defendants against whom these claims could be brought. A class action would also reduce the unit costs of each claim and would be less stressful for the individual claimants.

However, in Victoria at least, the class action rules require that the claims of all the persons in the class are in respect of, or arise out of, the same, similar or related circumstances and give rise to a substantial common question of law or fact.14

A number of cases highlight the difficulties in bringing class actions except in cases where the 'class' is very limited.15

What is the Alternative?

For the reasons outlined above, redress funds are the only alternative and good models that exist both here and overseas e.g. Redress WA and the fund established in Ireland in 2002.Under these models, compensation is for pain and suffering only. It does not matter when the abuse occurred. It is not necessary to prove negligence or breach of statutory duty. In Ireland, there was no limit on the compensation payable to victims of abuse and average payments were in the vicinity of $150,000 AUD.

In Queensland and Western Australia, there are two levels of payments. The first payment ($7,000 in QLD and $10,000 in WA) is available provided that it can be established that abuse occurred. If it can be established that the abuse has resulted in injury, then claimants can access the additional payments to a total payment of up to $40,000 in QLD and $45,000 in WA.

There are also other models, which would be relevant to the Australian situation. For example in 2006, the Canadian Government agreed to pay more than 2 billion Canadian dollars to compensate an estimated 80,000 survivors of indigenous background who were forcibly removed and/or placed in care. Furthermore, the Canadian Government, with the churches who ran many of the residential institutions, will take other steps to address the legacy of the residential schools.

These steps include the establishment of a 'truth and reconciliation commission', which allows claimants to tell their stories, and which will provide the basis for a critical review of how such widespread systemic abuse was allowed to occur and to provide lessons so that similar abuses can be avoided.

In Australia, any redress model should include a process whereby people can tell their stories and receive a genuine apology, written or otherwise. Also, as outlined above, there should also be a process whereby perpetrators are tracked down and brought to account.

The Federal Government should seek the States' support through the Council of Australian Governments (COAG) and invite all states to participate in a redress fund to which all stakeholders should contribute.

On this point, whilst religious and philanthropic organisations have pocketed vast amounts of money from the sale of the real estate of many of these orphanages and also profited from the hard labour that many of these children performed without pay, they refuse to acknowledge the rights of the children they abused to share in this wealth.

For those states who have already accepted their responsibilities, eg Tasmania, Queensland and Western Australia (and now most likely South Australia) there should be a top up arrangement depending on the maximum payments available through a national fund.

Julia Gillard's Government has an historic opportunity to show true leadership and redress the wrongs that were done to all of the 'Children of the State'.

1. Human Rights and Equal Opportunity Commission, Bringing Them Home - Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), Reconciliation and Social Justice Library http://www.hreoc.gov.au/social_justice/bth_report/report/index.html.

2.Senate Community Affairs Reference Committee, Lost Innocents: Righting the Record - Report on Child Migration (30 August 2001), Parliament of Australia, Senate Website.

3. Senate Community Affairs Committee, Forgotten Australians: A Report on Australians who experienced institutional or out-of-home care as children (30 August 2004), Parliament of Australia, Senate Website.

4. Human Rights and Equal Opportunity Commission, Bringing Them Home - Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997), Reconciliation and Social Justice Library

5. Cubillo v Commonwealth (2000)174 ALR 97

6. www.aph.gov.au Australian Parliament E-brief Oct 2001

7. www.aph.gov.au Australian Parliament E-brief Oct 2001

8. Commissioner Ted Mullighan, Commission of Inquiry Report - Children in State Care, Government of South Australia Website, https://www.sa.gov.au/topics/crime-justice-and-the-law/mullighan-inquiry.

9. Rundle v the Salvation Army (South Australian Property Trust) and Anor [2007 NSWSC 443]

10. New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4.

11. Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8.

12. The Trustees of the Roman Catholic Church v Ellis and Anor [2007] NSWCA 117.

13. Ibid.

14. Supreme Court Act 1986 (Vic) s33C (1).

15. O'Sullivan v Challenger Managed Investments Ltd (2007) NSW SC 383.