Potential New Penalties Discussed for Institutions Involved in Abuse of Children

The Honourable Justice Peter McClellan (Royal Commissioner) provided the keynote address to the National Assembly of the Uniting Church in Australia recently held in Perth. Addressing some potential recommendations of the Royal Commission, His Honour gave an overview of both civil and criminal law means of dealing with institutions involved in the abuse of children.

One of the possibilities discussed by His Honour was for the criminal law to be amended so that institutions can be found guilty of a criminal offence. That is, one option is to recast offences that currently impose criminal liability on individuals, so that they can apply to institutions.

His Honour noted that the sanctions that would apply to an institution would need to be different to those that apply to individuals. For example, imprisonment of an institution is simply not an option and a fine may have an “unwarranted and deleterious effect” on non-profit organisations. However, probation orders are possible, such as those found in the Competition and Consumer Act 2010 and the Australian Securities and Investments Act 2001. The effect of these orders would be to prevent institutions from engaging in certain activities (such as child care) for a defined period of time, and such supervisory intervention orders may be a creative way of sanctioning an offending institution “with the focus of the sanction being the reform of institutional behaviour and the promotion of institutional change.”

His Honour also discussed possible ways of dealing with difficulties in the civil law as well as the criminal law, to provide effective solutions where they have not necessarily been available in the past. For example, one difficulty which has been commonly encountered by abused persons seeking legal redress in the civil realm is that many unincorporated associations do not have a distinct legal personality which is able to be sued. 

Therefore, one of the recommendations of the Royal Commission may be a National Scheme administered by the Commonwealth but funded by the relevant institutions, including the various governments where institutional failures have occurred, to provide compensation for victims of abuse.

The work of the Royal Commission has been significant. One of the new elements introduced by this Royal Commission through changes to the Royal Commission Act is to create a process called a “private session”. The private session is conducted by one or two commissioners and is an opportunity for a person to “tell their story” of abuse in a protected and supportive environment. This is in contrast with the better understood “public hearings” which the Royal Commission also conducts.

The Royal Commission has completed 3,766 private sessions, and there are presently 1,527 people waiting for a private session. So far 666 matters, most coming from private sessions, have been referred by the Royal Commission to the police.

His Honour commented that

“it is now apparent that when our task is complete we will have documented a period in Australian society where institutions failed the children in their care…There is no difference in the nature of the allegations nor in the mechanism for institutional failure between institutions conducted by the government and those in the private sector.”

“The power of the institution must never again be allowed to silence a child or diminish the preparedness or capacity of adults to act to protect children.”

Not only has the Commission provided an opportunity for healing for many victims of institutional abuse, but it hopefully sets a platform for understanding the way in which an institution’s culture may contribute to or facilitate the abuse of children in its care, for enhancing institutional accountability, and encouraging positive changes in institutional behaviour.  Read the full speech here.

The Commission’s Final Report on Redress and Civil Litigation is expected to be with the government by the end of August 2015.

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