Response Statement : Qld Statute of Limitation Consultation Issue Paper Response Submitted by : Kevin Lynch victims in Royal Commission Case Study 34 Contact by Email : lynchvictim@gmail.com Consultation Response to : The civil litigation recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse: Redress and Civil Litigation Report - understanding the Queensland context Consultation Lead : Department of Justice and Attorney General Details of Victims Petition in Case Study 34 : https://www.change.org/p/australian-royal-commission-into-institutional-responses-to-child-sexual-abuse-case-study-34-royal-commission-call-peter-dutton-mp-others-to-testify-in-sex-abuse-case-study-34 This is a statement by survivors of Kevin Lynch in Royal Commission Case Study 34. It is in response to Issue Paper August 2016 : Child sexual abuse – civil litigation issues review Not Government Policy Prior to responding to the specific questions raised in the consultation tabled towards the middle and end survivors of sexual abuse would like to state as follows : 1. It is over 30 years since the publication of the “Sturgess Report” by Des Sturgess in 1985. His observations and foresight to understand the systemic and institutional social problem of child sexual abuse inherently resulted in a significantly high proportion of the Queensland prison population and those facing prosecution as having been sexually abused as children. This causes a dilemma for the Queensland justice system, in so far as if a survivor of sexual abuse goes on to commit an offence, sexual or other criminal activity they move from a victim of a crime to becoming a perpetrator. A cycle of abuse therefore becomes self-perpetuating and self-fulfilling. Nobody within the system from institutional, agency or otherwise has adequately responded to a survivor’s individual needs and therefore typically the internal and underlying psychological trauma has not been addressed when someone has been sexually abused as a child. 2. Subsequent to the Sturgess Report in 1985 there has been inquiry and report after report in the subject area of child sexual abuse with very little in the way of affirmative action in order to prevent survivors of sexual abuse becoming offenders and perpetrators of future criminal activity. Victims welcome the Statute of Limitation consultation, but to have relevance and purpose it would simply be an insult to the many survivors of child sexual abuse if any Statute of Limitation legislative changes in the longer term were not bound together by comprehensive legislation covering the rehabilitation of survivors of child sexual abuse. The type of legislation survivors of child sexual abuse in Queensland seek the Department of Justice and Attorney General and the Premier of Queensland to work towards should be not be that dissimilar and comprehensive to that covering workers in these institutions and the citation of “Workers’ Compensation and Rehabilitation Act 2003” is an example of the comprehensive and specific legations child survivors of sexual abuse would want to see eventuate from this consulation. Recommendation A : Specific Legislation for the "Rehabilitation of Survivors of Child Sexual Abuse." 3. The Fitzgerald Inquiry following allegations of institutional corruption by the then Queensland State Government in 1987 was instigated by the late Honourable MP Bill Gunn. Terms of reference established by Ian Callinan QC and the Fitzgerald Inquiry overseen by Tony Fitzgerald QC specifically excluded sexual abuse and sexual exploitation of minors as part of Fitzgerald’s remit. This is despite the Sturgess report’s damning indictment only 18 months prior detailing the extend of child sexual abuse occurring in Queensland. Given the level of knowledge at that particularly time dating back to the mid and late 1980’s, by those in a position of authority now over 30 years ago, it would be an insult to victims of sexual abuse for the State of Queensland and the Judicial System to absolve from directly being held jointly accountable in the rehabilitation and restitution of survivors of child sexual abuse. Recommendation B : Holding Institutions, Insurers and the State Jointly legally liable for the Rehabilitation and Restitution of Child Survivors of Sexual Abuse 4. There is evidence by way of the Sturgess report and the Fitzgerald Inquiry in the 1980’s that the Queensland judiciary and parliamentary system itself and individuals working within the system new child sexual abuse was a State wide problem in the 1980’s, but failed in their duty and responsibility to actually do anything about it. Therefore those in a position of authority at the very pinnacle of the system chose to move responsibility from their own shoulders to someone else’s in the distant future by ignoring the issues surrounding child sexual abuse. Survivors of child sexual abuse in Royal Commission Case Study 34 seek the Royal Commission to call and to cross-examine under oath Ian Callinan QC and Tony Fitzgerald QC together with Des Sturgess who recommended Tony Fitzgerald. Specifically victims would like to know the truth, as to why sexual abuse of minors was excluded from the Fitzgerald Inquiry terms of reference. Victims allege the activities of the perpetrator Kevin Lynch was in fact known by senior members of the Queensland Judiciary and senior Members of the Queensland Parliament, but they chose not to act in the interests of victims as survivors. Rather those in a position of authority chose to act to protecting the Brisbane Grammar school’s reputation and the reputation of number of senior officials rather than addressing the serious issue of sexual abuse in one of Brisbane’s most prestigious schools perpetrated by Kevin Lynch. Recommendation C : The Royal Commission call and request testimony under oath from Ian Callinan QC, Tony Fitzgerald QC and Des Sturgess 5. Posthumously survivors of child sexual abuse would like it place on the public record that the Honourable Bill Gunn is highly like to have known of the extent and the psychological trauma suffered by survivors of child sexual abuse. It is alleged by victims that rather than the State to be forced to accept the liability and responsibility for the problem of child sexual abuse along with Institutions at the time of the Fitzgerald Inquiry in 1987, the issue was intentionally avoided. In so doing many survivors have not been adequately rehabilitated nor recompensed for their loss of innocent in the past 30 years. Victims stress that they do not blame the Honourable Bill Gunn, but victims allege that he knowingly agreed to the exclusion of sexual abuse as one of the Fitzgerald Inquiry terms of reference. It is further alleged by survivors, the organization Act for Kids https://www.actforkids.com.au/about/ formerly known as the Abused Child Trust was formed under such guise and pretext in March 1988. While the work of the charity has no doubt supported survivors over the many years since its inception, it in no way absolves the State and all those who could have acted with courage and conviction to adequately address the systemic problem of children sexual abuse, at the time of the Fitzgerald Inquiry, had Fitzgerald included scope for such investigation. Survivors call on the Patron of Act for Kids, the Queensland Governor General, Justice Paul De Jersey who incidentally was after all the Chancellor of the Anglican Diocese of Brisbane at the time the perpetrator Kevin Lynch was at St Pauls School, to acknowledge what survivors allege and believe to be true of the States involvement in avoiding dealing with the social problem of child sexual abuse. Recommendation D : Posthumous acknowledgement by Queensland Governor General Justice Paul De Jersey that the Honourable Bill Gunn and the State of Queensland knew of the extent and trauma of child sexual abuse, at the time of the Fitzgerald Inquiry in 1987, but chose to do nothing. That is apart from supporting the establishment of Act for Kids aided by the Queensland legal fraternity. 6. Apart from Institution themselves, it has to be acknowledged the roll of office holders of those Institutions, together with Public office holdings including Members of Parliament and agencies such as the Queensland Police Service need to be held up to public scrutiny. That is if it is later found an individual’s own inaction and or that they ignored claims of child sexual abuse resulting in further injury to others they be held liable. Media organizations should also be called to account in terms of how they may convey information to the wider public and may for example side with an Institution, rather than a victim of child sexual abuse. A balance needs to be struck between the wider context of who should be held publicly accountable. Recommendation E : Improved Public Scrutiny and Accountability and non-delegable liability. 7. In respect to holding public officers accountable enabling legislation covering the immediate removal and or suspension of Public Officials from office and or Trustees as governors of Institutions. It should be highlighted Case Study 34 where the Brisbane Grammar School Trustee Mr Howard Stack has been Chair of Brisbane Grammar School Trustees for a period of 26 years. While Mr Stack was appointed a year after Kevin Lynch resigned from the school at the end of 1988 and therefore it is accepted that Howard Stack was not involved in any cover-up of Lynch’s sexual abuse prior to his departure from the school at the end of 1988. However it should be pointed out to the Attorney General that Mr Howard Stack as Chair of Trustees of the school signed a letter dated 12 February 2001 Exhibit QLD.0101.001.0008 in Case Study 34, to the then Minister for Education the Honourable Dean Wells in response to a letter from the Minister to the School Exhibit QLD.0101.001.0014 (1) on the 20 Dec 2000 requesting further information regarding the schools review of allegations of sexual abuse by the perpetrator Kevin Lynch. Had Mr Howard Stack not been so economical with the truth in his letter of the 12 February 2001 to the Minister alleging the School only knew about the allegations about Kevin Lynch when they surfaced in the newspaper in May of 2000, the Minister at the time may have ordered an immediate inspection of the School. As it in fact transpires, thanks to the process of discovery of evidence by the Royal Commission hearing in Case Study 34, it was as far back as 17 November 1998 Exhibit ASQ.220.005.0390 when the head of Brisbane Grammar Dr Peter Lennox responded within 7 days to Mr Bernard Yorke’s letter dated 10 November 1998 Exhibit DOC.370.001.0039 (1) enquiring of the school in respect to allegations of impropriety against Kevin Lynch. In such circumstances victims in Case Study 34 allege Mr Howard Stack mislead the Minister for Education at the time of his letter 12 February 2002 and the School has never in fact conducted a thorough investigation into the serious allegations victims have levelled at the School. Furthermore in oral testimony at the Royal Commission, Mr Howard Stack admitted under oath that he regularly does not consult the full Board of Trustees about important decision, preferring to make them on his own as he may see fit. Victims argue it is precisely the very poor governance of Brisbane Grammar School, that resulted in so many victims being sexually assaulted by Kevin Lynch, while the school continues to arrogantly deny any knowledge of the totally inappropriate conduct of the school counsellor. Mr Howard Stack accepted under oral testimony that to secure insurance cover, he basically had to “Lie” and claim the School had no knowledge of allegations against Kevin Lynch, relying on an Affidavit signed by Mr Max Howell. Other testimony heard by the Royal Commission corroborates allegations made by a number of victims and their parents, that the School did in fact know about allegations that Kevin Lynch sexually assaulted a number of students who brought their allegations to the headmaster at the time Mr Max Howell, but he ignored the allegations. To add insult to injury Mr Howard Stack has refused to refund the school fees paid by parents on before of victims for a prestigious School that so badly failed well over 100 victims in providing a quality education. Under such circumstances there should not have been any hesitation in refunding the fees paid to the school, as a goodwill gesture as part of the process of rehabilitation and restorative justice would have gained the trust of victims. As it stands victims and therefore former students of Brisbane Grammar School have no confidence in the ability of the current Board of Trustees to act in the many victims. This refusal to refund school fees came only a little over 1 month after the damning testimony heard in Case Study 34 in November of 2015. Therefore victims argue that immediate action under the Grammar School Act 1975 should be used to immediately remove Mr Howard Stack and all current Trustees of Brisbane Grammar School from their office as Trustees of the school. Recommendation F1 : Removal of office holders of Institutions in the event it is established an official has acted inappropriately in covering-up allegations of sexual abuse Recommendation F2 : The immediate removal of Mr Howard Stack and all current serving Trustees of Brisbane Grammar School including the removal of the headmaster Mr Anthony Micallef 8. Affirmative action for survivors of child sexual abuse means a holistic approach to rehabilitation and not simply “Hush money,” for victims to keep quiet, as is so often the case. When “Hush money” is used to quell victim disquiet, victims never fully have the opportunity to reach a point of “Forgiveness” both in themselves, but more importantly at the Institutions including the State who failed them. The establishment of a neutral body to support the process of truth and reconciliation. This would also aid in the legal discovery process. “Forgiveness,” is an important step in the rehabilitation process of survivors of sexual abuse, but it also requires institutions and the State themselves to be, “Truthful, fully open, transparent and engaging,” with survivors. Unfortunately survivors typically feel Institutions and the State are hiding relevant information and therefore, “Forgiveness” needs to be seen as a two way exchange for reconciliation and rehabilitation to have a positive long term impact. The Forde Inquiry was a welcome start for those victims identified in that report, but the terms of reference were so constrained that it only scratched the surface of this systemic problem of child sex abuse. Recommendation G : Formation of a neutral body “Child Sexual Abuse Truth and Reconciliation Commission.” 9. It is possible for many victims of sexual abuse to live functionally in society up to a point, but there are certain trigger points in a victim’s life. These trigger points such as death of a loved one, birth of a child, divorce and family breakdown, employment difficulties, money and debt problem etc typically occur many years after the sexual abuse occurred. It is at these identified trigger points victims are at their most vulnerable and can easily spiral out of control. Apart from direct support from “Institutions,” themselves that is very difficult at these vulnerable moments in a victims life and can be very lengthy in seeking adequate redress from institutions, victims find themselves unable to access adequate support at crucial moments in their lives. It is for this very reason one of the recommendations victims would like included in more comprehensive child sexual abuse rehabilitation legislation is the ability to easily and quickly access and claim on insurance policies that offer “Total and Permanent Disability. (TPD)” Recommendation H : Enabling Legislation for victims of child sexual abuse to quickly and easily claim on insurance policies that offer “Total and Permanent Disability” 10. In many instances, Institution’s and the State themselves are afraid of the reputational damage of dealing with a perpetrator. Victims themselves are reluctant to speak up and out as they are likely to be highly vulnerable at a certain age and even if a young person does speak up they might be ostracised as having spoken up. In speaking up a victim may ultimately feel robbed of justice if a perpetrator is given a short sentence or not convicted at all. In workplace health and safety covering institutions there is significant legislation covering “physical dangers” with detailed processes and investigations by relevant regulators to prevent future physical accidents. However health and safety legislation is rather lacking in substance and specifics covering child sexual abuse, as a health and safety issue. It is the long term prevention of child sexual abuse that needs to be at the forefront of minds governing future legislation changes. Recommendation I : Health and Safety Legislation updated incorporating detailed specific area covering Child Sexual Abuse 11. While incredibly hard for all parties involved to accept as ultimately a monetary quantum value needs to be assessed and agree in any civil action for recovery if successful, but inevitably is highly likely to be resisted by institutions and their insurers at the very outset. Accepting and admitting liability and fault is ultimately very expensive for institutions and their insurers, but if society does not now draw a line and accept past failings and provide first class restitution rather than second class or none at all, the likelihood is that an ever increasing number of people in the population who have been sexually abused will progress to becoming perpetrators and the cycle will never be broken. Developing a model of what first class rehabilitation of child sexual abuse in fact looks like is essential. Recommendation J : Develop a Model Framework for Gold Standard Rehabilitation of Child Sexual Abuse 12. Survivors highlight the high degree of rehabilitation support given to Queensland Police officer, Daryl Green after being shot by a victim of sexual abuse in Royal Commission Case Study 34. Full details can be found on the website Twice Shot http://twiceshot.com/ Survivors highlight that such recovery and rehabilitation in the course of employment should not preclude the survivors of sexual abuse also being given equal opportunity for rehabilitation. It should be further highlighted that Daryl Green is in fact causing further anxiety, injustice and distress to survivors of sexual abuse. This includes avoiding telling the audience when he makes a presentation of the other side to a perpetrator, that they themselves may have been a victim. Victims like to blame the perpetrator and unfortunately rather than forgiveness, Daryl Green still exhibits a level of anger towards the perpetrator that is not helpful to all involved in Case Study 34. There are often extenuating circumstances in child sexual abuse, as cases are generally highly complex. Simply blaming an individual for their actions is not particularly helpful in the long term, if the goal is to fully rehabilitate a surviving victim. That is if Nigel Parodi had himself received the same degree of rehabilitation and support at the time, as it has been alleged he was sexually assaulted by Kevin Lynch, as a student attending Brisbane Grammar, Daryl Green may never have been shot in May 2000. Nigel Parodi is therefore likely to be still alive today living peacefully in the community, if adequate support had been given at the very latest in 1997 after the arrest and charging of the perpetrator Kevin Lynch and his suicide. What is particularly distressing to victims is that Dr Peter Lennox the headmaster at Brisbane Grammar School on the 17 November 1998 sent a letter to Bernard Yorke claiming the school had no knowledge of allegations against Kevin Lynch and did not conduct and seek information from past students. Breaking the cycle of child sexual abuse by acknowledging the very existence of the need to adequately support survivors will significantly reduce criminal offending rates and the reduction in victims eventually becoming perpetrators. Recommendation K : Breaking the Cycle of abuse. Acknowledging Complexity - Balancing the needs of survivor / victims when they progress to committing an offence with those of victims. 13. The tabled Royal Commission redress scheme while a starting point, by no means adequately considers all the longer term financial implications to victims of sexual abuse. It is acknowledged there are examples of those who have been sexually abused who have overcome adversity and have become financially independent. Although given the high incidents of incarceration noted by Des Sturgess in his 1985 report, a victim of sexual abuse is highly likely to have had an erratic employment history and is more than likely therefore to have earned significantly less during periods of employment in comparison to their peers. Earning capacity is therefore well below the national average for those who have been sexually abused. Alcohol, drug addiction, suicide and risky sexual tendency is a prevalent problem amongst those who have been sexually abused. Life chances are therefore life limiting for victims of sexual abuse, as social isolation, anxiety, depression vulnerability and fear of authority all playout in there own unique way. Coupled with sexual abuse is a cycle of long term social deprivation, as victims of sexual abuse typically may not qualify for “Disability social welfare support,” as victims may not openly volunteer such information. Therefore those who have been sexually abused may typically fall outside the social safety net for support. Recommendation L : Specifically Lobby the Federal Government to Define Child Sexual Abuse as a qualifying factor for a CentreLink Disability Pension support 14. If a survivor of sexual abuse is diagnosed as having been sexually abused, the typical label and treatment diagnosis is “Post Traumatic Stress Disorder.” In terms of future recommendations this response by victims, puts forward the case for developing a clinical diagnosis framework specifically for victims who may claim to have been sexually abused as a minor and or clinicians who suspect a patient has been sexually abused. Improving a clinical framework diagnosis will also help inform the rehabilitation of the victim of child sexual abuse Recommendation M : Development of specific Clinical Diagnosis Framework for Child Sexual Abuse 15. It is noted that currently the data collection of Queensland Suicide Register does not include data collection on the Institutions either a victim or perpetrator has come into contact with during the course of their life. As suicide is the final act of desperation and generally a cry for help, improved data collection could help in better preventing and understanding child sexual abuse by regularly monitoring links between Institution and suicide victim. In instances where there are clusters of suicide victims around a particular Institution this will also help inform potential quantum, as the risks of suicide of surviving victims are therefore likely to be greater and need a higher degree of long term support. This is not to negate the level of support and rehabilitation needed by all victims of sexual abuse, but those were suicide features may require a significantly higher degree of long term care and support. The Queensland Suicide Register is held by Griffith University, Australian Institute for Suicide Research and Prevention. https://www.griffith.edu.au/health/australian-institute-suicide-research-prevention Recommendation N : Improved Data Collection that includes Institutions where a victim of suicide attended be developed and held by the Queensland Suicide Register 16. Mandatory Coroner’s Inquest on the sudden death and or suicide of a person soon after their arrest, charging and or allegations surface in relation to child sexual abuse. It should be highlighted in Case Study 34 that the perpetrator Kevin Lynch was arrested and charged with a sexual offence against a minor on 22 January 1997 and then committed suicide on the 23 January 1997. Kevin Lynch was due to appear in the Magistrates Court on the 4th February 1997 and hence because of his death the whole case file was closed by the Queensland Police. The Queensland Police Force advise the Queensland Coroner that there were no suspicious circumstances that may warrant a Coroner’s Inquest into the death of Kevin Lynch. Therefore no Coroner’s Inquest was ever held. Had there been a Coroner’s Inquest, victims of Kevin Lynch are highly likely to have come forward at the time of inquest in 1997. Victims would therefore have had the opportunity to corroborated the allegations that the perpetrator had sexually assaulted hundreds of young boys at Brisbane Grammar School and St Pauls. For victims of sexual abuse to reconcile and forgive the perpetrator, it is very important for survivors if they so wish to feel that some form of justice has been served. Therefore the mandatory holding of a Coroner’s Inquest in such circumstances would therefore provide some form of restorative justice to victims of sexual abuse. It would also help inform any future quantum once the full scale of a perpetrators actions is better known by victims as typically only Institutions themselves have full knowledge of the scale of the abuse. Recommendation O1 : Mandatory Coroners Inquest on suicide or sudden death of a person arrested, charged or allegations are made of a sexual offence against a minor Recommend O2 : The Queensland Coroner be requested by the Queensland Attorney General to open an inquest into the death of Kevin Lynch on behalf of Victims in Royal Commission Case Study 34 17. Survivors of child sexual abuse typically find future solace by geographically removing themselves from the locality and place where child sexual abuse took place. In many instances this is likely to mean living abroad. Consideration is therefore needed in terms of reciprocal arrangements with foreign governments for survivors of child sexual abuse living abroad. This includes considerations for costs incurred when a survivor may need to return to Australia to participate in mediation or therapy or insurers etc Recommendation P : Consideration and special agreements with Foreign governments of Queensland Survivors of Child Sexual Abuse Living Abroad IN SUMMARY Part A For society as a whole to adequately deal with child sexual abuse, survivors argue that comprehensive legislation in Queensland now needs to be developed and Legislated. It is accepted that the issues as highlighted above extend well beyond the parameter of Civil Redress of child sexual abuse statute of limitation consultation. However for survivors to be rehabilitated and therefore aid in breaking the cycle of child sexual abuse, survivors table to the Department of Justice and the Attorney General, that a holistic and comprehensive approach should be taken. To give the surviving victims of sexual abuse and their families any sense of restoring their very shattered lives, covering at least all the points as highlighted above should be a given, together with points raised in other submissions. This will likely take many more months and possibly several years to fully legislate in terms of survivors desired outcome, however those that have survived are owed the opportunity to rehabilitate. This is then likely to result in future generations that are not so damaged in contrast to the current and previous generations. Only then can society truly say child sexual abuse has adequately been addressed. ====================== Part B Notwithstanding the above detailed submission that the survivors of sexual would like cover and a response from the Attorney General. In direct response to the consultations question survivors respond as follows and in the response refer directly to the highlighted recommendations as tabled. 1. Recommendation 85 is limited to child sexual abuse. Should other forms of abuse, for example, physical abuse and related psychological abuse be considered? If so, should there be a threshold of seriousness of abuse and how might that be defined? Response : Please refer to our Recommendation H : Development of specific Clinical Diagnosis Framework for Child Sexual Abuse. It is the view of survivors that a specific clinical diagnosis framework to take into account the various forms of child abuse and not simply sexual abuse would therefore better inform the degree of impacts to each survivor. In defining abuse it is put forward that abuse should be categorized in terms of 6 broad overarching groups Sexual Abuse (Covering all forms of inappropriate sexual contact) Physical Abuse (Defined as any unwanted physical touch) Emotional Psychological Abuse (Defined as the use of words and or emotional responses to torment) Financial Abuse (Defined as either prostitution and or the use of monetary power over another) Media Abuse (Defined as media organizations and or media personalities who may Official Authority Abuse (Defined as institutional officers who may assert their authority to cover-up abuse) 2. Recommendation 85 is limited to child sexual abuse that has occurred in an institutional context. Should child abuse in other or all settings, including the family setting, foster care and out of home care, also be included? Response 2 : All settings should be included. However it is accept that insurance cover is likely to be difficult and problematic to secure for those organizations without strong financial and institutional support. Therefore consideration needs to be given for the establishment of some form of State sponsored insurance provision, in order for smaller organizations not to be priced out of providing a valuable service to the community. 3. Should the removal of limitation periods be limited to child sexual abuse (and not physical or psychological abuse), but include abuse that occurred outside the institutional setting? Response 3 : All forms of abuse in an Institutional setting should be covered including child sexual abuse, physical abuse and psychological abuse and should also be covered in other settings that would be classed as non-institutional. A State sponsored insurance programme is likely to be required for non-institutional settings. 4. For child sexual abuse not in an institutional context and for abuse, other than child sexual abuse, should the limitation period be removed, or should there be expanded judicial discretion to extend the limitation period in either of these circumstances? Response 4 : Limitation should be removed for all forms of abuse and non institutional settings. A State sponsored insurance programme is likely to be required for non-institutional settings. 5. Does the Personal Injuries Proceedings Act 2002, create additional or unnecessary obstacles for parties? Should alternative procedures be adopted? Response 5 : See Recommendation A : Specific Legislation for the Rehabilitation of Survivors of Child Sexual Abuse 6. What processes and procedures could be adopted for dealing expeditiously (to avoid unnecessary costs) with matters where a stay of proceedings may eventuate? Duty of institutions (non-delegable duty and ‘reverse onus Response 6 : Refer to Recommendation G : Formation of a neutral body “Child Sexual Abuse Truth and Reconciliation Commission.” 7. Is the imposition of a non-delegable duty the best way to ensure that institutions take reasonable steps to prevent harm caused by child sexual abuse? Response 7 : Recommendation I : Health and Safety Legislation updated incorporating detailed specific area covering Child Sexual Abuse 8. Should legislation define ‘non-delegable duty’ and the extent of the duty or, should defining the nature and extent of a non-delegable duty be left to the courts? Please explain which approach you favour and why. Response 8 : Refer to Recommendation A : Specific Legislation for the “Rehabilitation of Survivors of Child Sexual Abuse” If Recommendation A in our proposal is accepted then legislation should be enacted to define ‘non-delegable duty’ In the interim if Statute of Limitations changes are legislated prior to more comprehensive legislation for the rehabilitation of child survivors it is suggested that it would be acceptable for the Courts to possible help define and this would then inform more detailed and comprehensive legislation 9. Recommendation 90 of the Commission identifies which institutions should be in scope for the purpose of imposing a non-delegable duty. Are there any institutions or types of institutions that should be in or out of scope? Please explain why you think an institution should be included or excluded? Response 9 : In order to avoid the problem that small organizations and generally speaking very caring individuals who may typically lack resources could be burdened with such onerous responsibilities, some form of scoping the size and viability is suggested. This will help inform how far imposing non-delegable duty on smaller organizations can go. 10. Recommendation 92 of the Commission identifies the types of ‘relationships’ (e.g. employees, members, officer holders, volunteers) that should be captured under the proposed statutory non-delegable duty. Are there any relationships that should be in or out of scope? Please explain why you think the relationship should be included or excluded? Response 10 : See Recommendation B : Holding Institutions, Insurers and the State Jointly legally liable for the Rehabilitation and Restitution of Child Survivors of Sexual Abuse High profile Patrons and media celebrities should be consider as being included if be their own endorsement they may legitimize a sexual perpetrator Individuals who may donate certain large sized sums of money to an institution should be included subject to an agreed lower limit (ie under $100,000 be excluded). While most individuals are genuine the donation of funds to an organization could be used in certain circumstances to hide and cover-up sexual abuse. Institutional Suppliers of services should be considered as being included if for example they may have direct contact with young people. (Ie external suppliers may for example provide afterschool sports) 11. If implemented should the legislation include a test for what constitutes reasonable care to prevent child sexual abuse in an institutional context? What would the test include? Response 11 : See Recommendation A : Specific Legislation for the “Rehabilitation of Survivors of Child Sexual Abuse” Further consideration is needed with a possible ½ day roundtable to discuss in detail with professionals, legal experts, parents and victims in order for all different interest groups to specifically define. 12. Should a complementary code of practice or standards be developed to provide guidance to institutions in respect of discharging the duty? What should the code or standards cover? Response 12 : See Recommendation A : Specific Legislation for the “Rehabilitation of Survivors of Child Sexual Abuse” Further consideration is needed with a possible ½ day roundtable to discuss in detail with professionals, legal experts, parents and victims in order for all different interest groups to specifically define. 13. Should the implementation of recommendation 89 be broadened to include other forms of abuse, for example, to impose a non-delegable duty on institutions to prevent serious physical and related psychological abuse in an institutional context? Response 13 : Non-delegable duty should also apply to other forms of abuse and not be exclusively related to sexual abuse 14. What are the financial and other associated impacts for institutions in implementing recommendations 89, 90, and 92 as regards to non-delegable duty? What are the implications for the cost and availability of insurance? Response 14. Short term there is likely to be significant financial impacts as insurance premiums escalate, staff might be harder to recruit including the retention of Trustees. However it is suggested that the implementations of a number of the recommendations in our submission is likely to significantly reduce the longer term quantum costs of child sexual abuse. Preventative measures will longer term likely reduce the quantum costs of supporting and rehabilitating victims as the number of future victims reduces if adequate preventative measures are introduced. See Recommendation O1 : Mandatory Coroners Inquest on suicide or sudden death of a person arrested, charged or allegations are made of a sexual offence against a minor See Recommendation J : Develop a Model Framework for Gold Standard Rehabilitation of Child Sexual Abuse See Recommendation H : Enabling Legislation for victims of child sexual abuse to quickly and easily claim on insurance policies that offer “Total and Permanent Disability” See Recommendation N : Improved Data Collection that includes Institutions a suicide victim attended be developed and held by the Queensland Suicide Register See Recommendation I : Health and Safety Legislation updated incorporating detailed specific area covering Child Sexual Abuse 15. Recommendation 91 of the Commission provides that all institutions should be liable for child sexual abuse, unless the institution can prove that it took reasonable steps to prevent the abuse. Do you agree that the reverse onus should apply to all institutions? Please explain why you agree or disagree with the Commission’s recommendation and which institutions should be included or excluded? Response 15 : Institutions and their officers and members have an inherent propensity to be economical with the truth, if it may result in a significant liability. Institutions should remain at least partly liable even if an Institution can prove they took reasonable steps to prevent the abuse. 16. Recommendation 92 of the Commission identifies the types of ‘relationships’ (e.g. employees, members, officer holders, volunteers) which should be captured by the proposed reverse onus requirement. Are there any relationships that should be included or excluded from the types of relationships captured? Please explain why you think a relationship should be included or excluded? Response 16 : Partial liability under reverse onus should be considered High profile Patrons and media celebrities should be consider as being included if be their own endorsement they may legitimize a sexual perpetrator Individuals who may donate certain large sized sums of money to an institution should be included subject to an agreed lower limit (ie under $100,000 be excluded). While most individuals are genuine the donation of funds to an organization could be used in certain circumstances to hide and cover-up sexual abuse. Institutional Suppliers of services should be considered as being included if for example they may have direct contact with young people. (Ie external suppliers may for example provide afterschool sports) 17. Should the scope of recommendation 91 be broadened to include liability for other forms of abuse, for example, serious physical and related psychological abuse in an institutional context? Response 17 : All forms of abuse should be included 18. What are the financial and other associated impacts for institutions in implementing recommendations 91 and 92 as regards to the reversal of the onus of proof? What are the potential implications for the cost and availability of insurance? Response 18 : Suppliers in particular may find it uneconomical to trade with an Institution and therefore supplier costs could significantly increase Further work is need to inform the impacts of external supplies if they were to be included. 19. Should the claimant/plaintiff be required to enquire as to the correct defendant, or the nature of entities related to the defendant in order to identify any related property trusts, before commencing proceedings? Should the defendant have a responsibility to nominate an additional related entity with capacity to meet any award of damages or costs? Response 19 : See Recommendation G : Formation of a neutral body “Child Sexual Abuse Truth and Reconciliation Commission.” It is only after commencing legal proceedings and via the process of disclosure that certain information relating to the holding of property and or evidence and information for a viable civil claim may result. Therefore potential civil claimants may find an institution is likely to use all attempts to shield their property and assets from scrutiny if a claimant could only commence proceedings once a suitable defendant that is asset backed to potentially award damages is found and identified. The formation of a Truth and Reconciliation Commission is likely to aid in the process of discovery prior to formal litiagtion Furthermore victims of sexual abuse claim the process of disclosure once formal civil litigation commences is first and foremost a process of “Truth, Reconciliation and Forgiveness!” While yes in legal terms what is at stake is a final quantum monetary sum, but, it is the process of understanding what actually went wrong in the institutions recruitment, training, staff reviews in conjunction with policies and procedures to have allowed sexual abuse to remain undetected. Therefore one could argue the Institution had extremely poor “Quality control.” Understanding what exactly went wrong will help inform the longer term liability for restitution and the monetary quantum. 20. Should the court have the power to appoint an expert to investigate and identify the appropriate entity to be joined in proceedings, upon application by the claimant/plaintiff? (Note the current powers contained in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), in particular, rule 429G Appointment of experts and rules 429J to 429M dealing with powers to facilitate the preparation of the report.) Response 20 : See Recommendation G : Formation of a neutral body “Child Sexual Abuse Truth and Reconciliation Commission.” If Truth and Reconciliation Commission were a first point of call the identification of an appropriate entity to join proceedings is likely to be identified at this point. 21. Should the court have the power to direct the related entity to make a payment in satisfaction of any award of damages or costs, notwithstanding the terms of any deed of trust, or statutory instrument establishing the trust? Response 21 : A court should have the power to direct payment from a specific Trust Account for example despite the fact that a related Trustee Account may have been specifically designated for a single purpose. 22. Are the existing powers of the court contained in the UCPR sufficient for these purposes? Response 22 : Insufficient knowledge of UCPR to answer specifically, although a test case would be desirable. 23. For example, the UCPR provide for the court to include a person as a party at any stage of a proceeding (rule 69). If the recommendation is adopted, would it be desirable to have an additional provision that specifies that, in exercising its discretion to join an entity as a party to proceedings, the court should give consideration to the following factors: • whether the entity has sufficient connection with the institution named as the defendant; • whether the entity has sufficient resources to meet the potential liability; and • whether it is fair and reasonable in all the circumstances for the entity to be joined in the proceedings. Response 23 : Given that litigation can be lengthy and hence circumstances for a person or related party may change. Therefore serious consideration needs to be given to parties or entities and it could potentially be used in some instances by an Institution to remove their own liability. 24. With respect to recommendation 95, would the imposition of a requirement for government funded organisations providing children’s services to have insurance to cover liability for child sexual abuse, have any operational consequences for those organisations? What are the implications for the cost and availability of insurance? Response 24 : It is expected some form of State sponsored insurance is likely to be needed to cover gaps in insurance in particularly to support smaller organizations who might be priced out of insurance. As part of government funding for organizations providing children’s services, perhaps an agreed specific defined element of insurance is needed to be specified in detail as part of the funding contract and agreement. Victims look forward to a detailed response from the Queensland Attorney General. Please feel free to Donate to our Crowd Funding Campaign in support of survivors of sexual abuse. https://www.gofundme.com/27tqpb7w