2019 Human Rights Day Oration

The Hon Peter McClellan AM QC

10 December 2019

I recently visited the Peace Memorial in Hiroshima. It is a confronting but moving experience. It is a memorial to the people the allies believed it necessary to kill to win the war.  They were also intent on emphasising to the world that they had the most powerful weapon ever invented.  They chose to detonate the bomb in an urban area rather than destroy a purely military target. The contemporary photographs of those killed and badly injured remind us of the reasons for the creation of the United Nations.  Six years of brutal warfare had left their mark.

Apart from the realisation that nuclear weapons would forever change the power relationships between nations, there were other factors that contributed to the desire for an effective international body and a rules based world order. The horror of the Jewish Holocaust resonated through the Western world. Although history is replete with the slaughter of people, sometimes on a massive scale, the realisation that an industrialised nation with an educated population could develop such a corrupted ideology provoked a determination to ensure it would never happen again. The desire to define and enforce the fundamental rights of individuals emerged as a legacy of the suffering of so many.

To create an effective international body which could both identify and enforce the legitimate rights of nations and individuals, the participation of the allies was essential. In particular, the most powerful nation, the United States of America, would have to accept a leadership role, both because of its financial capacity and its military strength. Notwithstanding the tensions between the allies over the right to nuclear weapons, an appropriate homeland for the Jewish people and the end of colonial ambitions, informed by liberal ideals, a fragile compact was achieved and the United Nations was created. From the UN came UNESCO and with it the Universal Declaration of Human Rights which we celebrate today.

Eleanor Roosevelt spoke in Paris on 9 December 1948, the day before the adoption of the Universal Declaration. She said the document was “not a treaty” and not “an international agreement” but a more powerful statement. She said, “It is a Declaration of basic principles of human rights and freedoms…and to serve as a common standard of achievement for all people of all nations”. As Eleanor Roosevelt contemplated, the Declaration was followed by the adoption of the International Covenant on Civil and Political Rights, which was opened for signature on 16 December 1966.

The UN and the Universal Declaration, and the rights they seek to enshrine and advance, have been subject to increasing challenge.  Some in the western world seek to confine their relevance, as if they are the exclusive interest of so-called “elites” or of those who identify as of the “left” rather than the “right” of the political spectrum.  To speak in these terms is to ignore the circumstances which demanded the creation of the UN and the commitment of nations to the Universal Declaration.

The subsequent work of the UN in respect of the rights of children has not been the subject of similar criticism.  The United Nations General Assembly adopted the Convention on the Rights of the Child in November 1989. It came into force on 2 September 1990. Its origins can be found in the Declaration of the Rights of the Child (the Geneva Convention) of 1924, which formed the basis for the adoption by the United Nations General Assembly of the Declaration of the Rights of the Child in 1959.

Article 19 of the Convention provides for the parties to take “all appropriate, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injuries or abuse, neglect or negligent treatment, mistreatment or exploitations, individual sexual abuse while in the care of parents, legal guardians or any other person who has the care of the child”.

The Royal Commission into Institutional Responses to Child Sexual Abuse was tasked with investigating the sexual abuse of children within Australian institutions. Although many more children are abused in family and other non-institutional contexts, the Commission was created from a concern that sexual abuse in institutions may be both widespread and lacked an appropriate response from the institutions in which it occurred.

The Royal Commission extended over five years. In that time we were contacted by 16, 953 people who were within our terms of reference. We heard from 7, 981 survivors of child abuse in a private session with one of the Commissioners. We received 1, 344 written accounts and referred 2,562 matters to the police. By the end of the Commission we had heard about 3, 489 institutions where we were told abuse had occurred. 58.1% of survivors said they were abused in an institution managed by a religious body, 32.5% in a Government institution and 10.5% in a non-Government, non-religious institution.

Of those who told us they were abused in a religious Institution, 61.4% said they experienced abuse in a Roman Catholic institution, 14.8% in an Anglican institution and 7.2% in a Salvation Army institution. As a proportion of all survivors, 35.7% of survivors said they suffered abuse in a Roman Catholic institution and 8.6% said they were abused in an Anglican institution.

Almost two in three survivors were male. 15% identified as Aboriginal and Torres Strait Islander people. The average age of survivors when first abused was 10.4 years, for male victims it was 10.8 years, and for female victims it was 9.7 years.

It would be a mistake to conclude that we heard from all survivors of institutional sexual abuse. As is apparent from our redress report, it is reasonable to assume that if the Royal Commission had continued beyond 5 years and all survivors had come forward, tens of thousands more would have come to the Commission.

Although the Royal Commission received evidence in public hearings from a number of survivors our Letters Patent directed us to consider the response of institutions. We received evidence from some known offenders but in the main our focus in public hearings was on senior members of both religious and other institutions.

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 abuse has been occurring for generations. For many survivors talking about past events requires 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 destroyed. For many, sexual abuse is a trauma they can never escape. It can affect every aspect of their lives.

Across many decades many of society’s institutions failed our children. Our child protection institutions and civil justice systems let them down. We cannot avoid the conclusion that the problems faced by many people who had been abused is the responsibility of our entire society. Society’s values and mechanisms, which were available to regulate and control aberrant behaviour, failed.

The greatest number of survivors came from Catholic institutions where it is apparent there have been many offenders. The abuse was covered up, and offenders were moved to protect the Church, which inevitably endangered other children. Rather than ensuring that offenders were subject to the criminal law, ineffectual attempts at ‘treatment’ of offenders were undertaken.

We heard from many leaders of the Catholic Church. When offering an excuse for the Church’s failure to act we were told by more than one leader that they perceived the offending to be a ‘moral failure’ rather than a criminal act. A moral failure could be forgiven in the confessional without any consequence for the offender or the church. A crime cannot.  I cannot comprehend how any person, much less one with qualifications in theology and very often further qualifications from recognised universities, could consider the rape of a child to be a moral failure but not a crime. This statement by leaders of the Catholic Church marks out the corruption within the Church both within Australia, and it seems from reports, in many other parts of the world. The Royal Commission has made many recommendations for change in the Catholic Church. It is to be hoped they will be adopted and the Church will be able to fulfil the mission which it defines for itself in Australia. I appreciate that there are many Australian Catholics who fear that the necessary changes may not occur.

Although we engaged with more survivors of the Catholic Church than other institutions, it is readily apparent that the leadership in many other institutions also failed. But it was only Catholic leaders who believed these were mere moral failures rather than recognising sexual offending against minors as a crime.

Although the survivors who came forward to the Commission were predominantly abused by Church people, institutional failures were not confined to the churches. A great many organisations that interacted with young people were found to have failed. Because the failures were so numerous and the impact on individuals so damaging the Australian community came to understand the severity of the problem. The need for an appropriate response for survivors, together with change in the management of institutions responsible for children, is now accepted.

The Commission recommended a National Redress Scheme for survivors. Although my understanding is confined to news reports, I have been disheartened by the lack of a timely engagement with the scheme by many institutions. I hope this is not because of a desire to put the protection of the institution’s assets ahead of the needs of survivors, a not uncommon response in the evidence the Commission received. I trust the scheme is now moving forward to effectively respond to survivors’ needs. Very often that need is found in adequate funding of ongoing psychological care as much as in a modest money sum. Many survivors struggle with broken lives and require access to professionals beyond the parameters previously funded by Government.

Apart from redress, the Commission made recommendations for change in a broad range of areas. Recommendations included changes to the management of institutions making them child safe, improvements in institutional responses, improving support and therapeutic services and improvement in out of home care, schools and detention centres. We made specific recommendations for various churches. We also provided a list of recommendations with respect to civil litigation and criminal processes.

Although I have not endeavoured to identify the extent to which our recommendations have been taken up, I have the impression that many have been adopted and others are under active consideration. Our recommendations with respect to civil litigation have been implemented in a number of states. Those changes have resulted in favourable decisions for survivors, which many would otherwise have been denied.

The Royal Commission also addressed the process of investigating, prosecuting and sentencing of offenders. We completed the largest investigation of the functioning of juries for sexual assault trials ever undertaken in the world.

Our jury study analysed the transcripts of about 100 jury deliberations in mock trials. I did not expect some of its conclusions. It was apparent that jurors approached their task with care. They distinguished between different counts and the facts relevant to each one. When one or more counts revealed greater criminality, they were careful not to let the unpleasant circumstances of one count affect their deliberations with respect to others. The juries were obviously cautious in their consideration of the counts which carried the greatest penalty, showing a reluctance to convict and being more likely to acquit on those counts.

The appropriate response to allegations of sexual assault has been and remains a difficult area. That difficulty is exacerbated by the common use of the expression “historical sexual” assault, an expression which to many implies a lesser offence or an allegation less likely to be true. Neither proposition is correct. As our research indicated, children are most unlikely to report a sexual assault until they are well into their adult years, in many cases more than 20 and often more than 30 years after the offence. That does not mean that some greater degree of scepticism should infect the determination as to whether the complainant is telling the truth.

Confining my remarks to the sexual assault of children, the sexual assault of adults is another complex topic, the community should be mindful of a number of aspects of our research.

When a person suffers a traumatic experience, and any sexual assault is traumatic, especially for young children, memory of the event will be impressed on their brains forever. As with all trauma, some of the detail of the event may be erroneously remembered, some aspects may not be remembered at all, but the essential elements will be. With the lapse of time some of the circumstances may be forgotten or a false memory developed but this does not mean that the central reported facts are fabricated or that the complainant is lying.

For many years, the prevailing wisdom of judges, and they were all men, was that generally sexual assault victims could only be believed if they immediately complained. It became known as the doctrine of “hue and cry”. Only in recent decades has the doctrine been rejected by many but certainly not all members of the community. As I have said, we now understand, although some commentators appear not to acknowledge it, that sexual assault victims and especially children do not immediately, or indeed may not for many years, complain about the assault. The embarrassment may be too great or the apparent or actual power of the offender such that the child finds it impossible to report. It is to be expected that children who have been abused by an authority figure, especially someone respected by the family, will when questioned deny that they have been assaulted. When, as is often the case, the assault continues the child may be trapped, overwhelmed by the threat of “going to hell” or other punishment if they tell someone about “our little secret”.

Sexual assault of children is a dreadful crime. It can have many terrible adverse lifetime consequences. Adults who report sexual assault which occurred when they were a child, especially in an institutional context, have little reason to submit themselves to the process of police investigation and the trauma of the criminal trial unless an assault has occurred. This is not the reasoning process of the law but it is an inevitable conclusion from the Commission’s discussions with the more than 8000 survivors who came to tell us of their childhood experiences.

The countries who first participated in the creation of the United Nations were determined that although nation states would still exist, empires would diminish and a “rules based world order” would be established. The rules would provide for relations between nations and trade, commerce and economic stability would be promoted. The powerful and developed nations would share the obligation of providing the resources necessary to ensure that through the UN these objectives could be achieved.

It would seem that at least some of those motivating forces are challenged today. Many nations appear to be retreating from a rules based order. Power vacuums, which will inevitably be filled, are emerging. We must hope that the lessons so tragically learnt in the first half of the twentieth century will not be forgotten and that the ordered world of the United Nations and with it the acceptance of fundamental human rights, including the rights of children, remains.

The Royal Commission was created after years of concerns had been expressed by many who had knowledge of or were victims of sexual abuse in institutions.  The scale of the offending exposed by the Commission and the understanding of the harm to survivors has become the motivating factor for change and reform. It is no longer possible to defend institutional failure or the criminal activities of their members as isolated or confined to a few “bad apples”. I trust the lessons learnt during the Royal Commission will not be lost and lasting change at an institutional and societal level will be the Royal Commission’s legacy.