The Royal Commission into Institutional Responses to Child Sexual Abuse winds up today when the last of its reports is published. The commission has rightly focussed the attention of the nation on the appalling consequences of child sexual abuse for victims, their families and communities. But while the royal commission may have brought a sense of justice and healing to many of those who have encountered abuse, when it comes to ensuring justice for the accused as well as the accuser, there have been some troubling recommendations. To be blunt, the rights of persons accused of child sexual abuse may be substantially undermined by this royal commission, and false accusations against individuals and institutions may increase as a consequence.
To be accused of child sexual abuse is obviously reputation-destroying and career-ending for most individuals. In our society, there is today arguably greater anger and community outrage at accused persons in this category of alleged offending than there is for those who are accused of murder or manslaughter. The royal commission surely knows this, yet its proposed national redress scheme provides no safeguards and protections to ensure that false accusations are limited.
The royal commission is proposing what is called a low proof, low threshold national redress scheme for survivors of child sexual abuse. On October 25 this year, Social Services Minister Christian Porter tabled a bill that sets out in detail how that scheme works.
Under this proposed ten year scheme there will be informal conferences and meetings, but no rights of external appeal to, for example, the Administrative Appeals Tribunal, from any findings made. Cross examining alleged victims will not be possible and nor will there be an opportunity to test the veracity of claims by, for example, forensically examining evidentiary material, as one would do in a court setting. But the most disturbing element is what evidence and proof is required for a claim to be accepted.
Under the national redress scheme the minimum requirement for an applicant in terms of evidence is a statutory declaration. No supporting material is required from applicants but they may present other evidence if they wish. The applicant merely has to show that there was a “reasonable likelihood” that the abuse occurred. This is a low threshold for an applicant to get over. In criminal cases a case must be proven beyond reasonable doubt and in civil cases the test is balance of probabilities. “Reasonable likelihood” is below both those commonly accepted standards of proof.
When an application is made under this informal process the institution involved — a church for example — will be asked to respond but a decision can be made without a response being received. When an application is approved an award of up to $150,000 can be made, and the institution must apologise, irrespective of its view about the claim.
There are times when speedy, non legal claim processes are appropriate. Consumer complaints are a prime example. But what we are talking about here is making findings against individuals and institutions which, as noted earlier, attract more opprobrium than murder accusations today. Yes, the process will be confidential, but unfortunately confidentiality is difficult to maintain in such schemes.
This royal commission has failed to respect the rule of law. In its zealous quest to deal with the undoubted problem of institutional child sex abuse it has jettisoned fundamental principles of fairness and justice.
The result of the proposed national redress scheme process may be that innocent individuals will find themselves fending off false allegations. This is no exaggeration given the low requirements in terms of evidence and standard of proof.
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When a person or institution is hit with a claim under the national redress scheme, their legal rights are severely compromised. This is a palpably unfair and unjust state of affairs and one that could have been avoided if the royal commission had taken more care to ensure the rights of the accused.
No one cavils with the proposition that victims of sexual abuse are entitled to redress. But, in according justice to victims, great care needs to be taken in protecting fundamental human rights and legal principles. The royal commission has failed this test when it comes to how claims are to be dealt with going forward.