Royal Commission into Institutional Responses to Child Sexual Abuse in Australia
26 November 2012
Secretariat
Royal Commission into Child Sexual Abuse
PO Box 6555
CANBERRA ACT 2600
AUSTRALIA
By email: royalcommissionsecretariat@pmc.gov.au
Dear Secretariat,
Royal Commission into Institutional Responses to Child Sexual Abuse in Australia
1. On behalf of Australian Lawyers for Human Rights (ALHR), I provide the following submission in response to the Consultation Paper dated 19 November 2012.
2. ALHR was established in 1993. ALHR is a network of Australian lawyers and law students active in practising and promoting awareness of international human rights. ALHR has a national membership of over 2,500 people, with active National, State and Territory committees. Through training, information, submissions and networking, ALHR promotes the practice of human rights law in Australia. ALHR has extensive experience and expertise in the principles and practice of international law, and human rights law in Australia.
3. ALHR welcomes the decision to initiate the Royal Commission and commends the consultation on the Terms of Reference (TORs). When determining the TORs and the form of the Royal Commission, we urge that explicit reference be made to Australia?s international human rights obligations. The Royal Commission should be directed to carrying out Australia?s human rights obligations owed to the victims of child sexual abuse. The ToRs should also expressly address Australia?s international human rights obligations to persons accused of wrongdoing including the obligation to ensure that accountability mechanisms pursue and provide due process.
Human rights of victims of child sexual abuse
4. As was stated in the preceding paragraph, the TORs should make explicit reference to Australia?s human rights obligations in relation to the victims of child sexual abuse. In this regard, assistance will be obtained from Convention on the Rights of the Child (CROC).
5. The CROC, which Australia ratified as a legally binding international instrument in January 1991, provides at Article 19 that:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
6. Additionally, ALHR draws your attention to the following relevant Articles of the CROC which also detail important obligations under international law:
? Article 3(1), which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration; and
? Article 12(2), which provides for the opportunity of a child to be heard in any judicial or administrative proceedings which affect the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Due diligence obligations including the right to adequate redress
7. As part of the framework by which human rights are protected, States? obligations extend to the requirement to act with due diligence to prevent, punish, investigate and redress harm as a result of acts of violence. It is important that all elements of due diligence are present in the ToRs of the Royal Commission. It will not be enough to look only to preventing such abuse happening again in the future. The accountability demanded by human rights law requires that perpetrators are held to account. It is also important that compensation be provided as part of the redressing of harm.
8. Significantly, States may be held responsible for private acts, if they fail to act with due diligence to prevent, investigate or punish acts of violence.
9. The right to reparations for violation of human rights, including child sexual abuse is also set out in the following:
a. Article 39 of the CROC;
b. Article 2 of the International Covenant on Civil and Political Rights 1966 (ICCPR), which Australia ratified in 1980;
c. Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD), which Australia ratified in 1975; and
d. Article 8 of the United Nations Declaration on Human Rights 1948 (UDHR).
10. The UN Committee on the Rights of the Child has stated that ?all appropriate? measures? referred to in Article 19 of the CROC extends to the need for State parties to ?ensure the protection of child victims and witnesses and effective access to redress and reparation?.
11. Compensation is an important way of ensuring redress and reparation to victims of violence for the wrong suffered by them. Compensation is a powerful symbolic acknowledgement of pain and suffering and that a wrong has been done. Compensation also has practical benefits and can empower victims, by providing them with choice over how to use their compensation money, which is important in the healing process.
12. ALHR supports the establishment of a redress scheme as part of the Commission, similar to Irish Residential Institutions Redress Scheme, which was a legislated scheme under the Residential Institutions Redress Act, 2002. Such a scheme will be crucial to achieving justice for victims of institutional child sexual abuse.
13. Incorporating compensation mechanisms into the TORs should also reduce the impact on victims having to re-tell their experience of abuse multiple times. Victims should not be required to revisit the significant trauma of having to retell their story, having already participated in the Royal Commission, in order to access compensation.
14. Culturally appropriate and specialised counselling should also be available to all victims of child sexual abuse whether or not they provide evidence to the Royal Commission. This counselling should be made immediately available, promoted widely and continue after the conclusion of the Royal Commission.
Due legal process for alleged perpetrators of child sexual abuse
15. It is important that perpetrators are held accountable for their actions.
16. The Royal Commission must ensure that alleged perpetrators of child sexual abuse are afforded due legal process.
17. Due legal process for all persons is required by Australia?s international legal obligations, including under Article 14 of the ICCPR.
Definition of Public and Private Organisations and Institutions
18. The definition of public and private organisations and institutions should include places where the abuse took place including religious organisations, out-of-home child welfare placements, state homes, schools, child care centres, and not-for-profit organisations such as sporting organisations, Scouts and Girl Guides.
19. Public and private organisational and institutional responses to child sexual abuse should also be considered in the ToRs. This should include the responses of police services and justice institutions. The responses of family law and child protection courts should also be examined.
20. There is scholarly research to suggest that there are ?serious problems and obstacles in the way the Family Court manage[s] child abuse? and barriers to child sexual abuse being raised in family law proceedings. These are likely to require changes to law, practice and procedure.
Selection of Commissioners
21. Royal Commissioners should be culturally aware and have experience working with Aboriginal and Torres Strait Islander people, CALD communities and people with disability. The Royal Commissioners should reflect a gender balance and at least one of the Commissioners should be an Aboriginal or Torres Strait Islander person.
Timeframe
22. The Royal Commission should be a holistic healing process for victims/survivors. Those who would like to give evidence should have the opportunity to do so. Systemic issues must be identified. This is not a process which can be rushed.
23. Given the process will likely take some time, it is important that the Royal Commission provide regular updates through interim reports. The interim reports should include recommendations for the Government to consider implementing while the Royal Commission’s work continues.
Other issues
24. Victims should be able to give evidence through confidential means if they so choose, as occurred in the Laffoy/Ryan Commission to Inquire into Child Abuse in Ireland.
25. Victims of abuse who have litigation on foot at the time of the Royal Commission should be able to give evidence. Procedures may need to be developed to remove impediments that might, otherwise, prevent this from occurring.
26. Similarly, those who have entered into confidentiality deeds (for example, as part of a damages settlement) should not be hindered from giving evidence at the Royal Commission. This may require special legislation.
27. ALHR would be pleased to provide further input into the development of the human rights aspects of the Terms of Reference, and looks forward to the opportunity to provide a submission to the Royal Commission in due course.
Best regards,
Stephen Keim
President
Australian Lawyers for Human Rights
Email: s.keim@higginschambers.com.au
Mobile: 0433 846 518