Keynote address: 14th Australasian Conference on Child Abuse and Neglect

Royal Commission into Institutional Responses to Child Sexual Abuse

Tuesday 31 March

The Hon Justice Peter McClellan AM
Commissioner, Royal Commission into Institutional Responses to Child Sexual Abuse

The Royal Commission has now been in operation for more than two years. We have completed the public hearings for 25 case studies which in most cases have been concerned with the failure of institutions to manage their affairs to adequately protect the children in their care. We have looked at churches, religious schools, and state run institutions. We recently looked at issues in relation to out of home care. But we have many more and varied tasks to complete.

One of the obligations in our Terms of Reference requires the Commissioners to consider what “institutions and governments should do to address, or alleviate the impact of past and future child sexual abuse … including, in particular, in ensuring justice for victims through the provision of redress by institutions, process for referral for investigation and prosecution and support services.

Justice for victims is an elusive concept. In the civil context redress schemes providing modest money compensation without the need to prove a breach of a duty of care are commonly believed to be appropriate. Otherwise in the civil context there are difficulties in defining the content of a duty of care. Determining the individuals or institutions who must accept the obligation of fulfilling that duty can also provoke animated discussion. Whether common law damages or some more confined financial recompense is appropriate are matters the Commissioners are considering as part of our discussions about redress for survivors.

Justice for victims in the criminal context raises multiple and complex issues different from the issues in a civil context. The Royal Commission is addressing many of those issues through external research, round tables and our own policy development. Prof Arie Frieberg, Hugh Donnelly and others have already completed significant work for us. The issues extend across the appropriate range of criminal offences, the reporting of criminal acts, their investigation and their prosecution. The latter requires us to consider the trial process, the legal rules which control it, in particular joint trials and tendency evidence, directions to juries and appropriate sentencing outcomes.

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