Interfaith and Royal Commission Terms of Reference

Royal Commission into Institutional Responses to Child Sexual Abuse

Prime Minister Julia Gillard has announced the terms of reference for the Royal Commission into institutional child abuse, with plans for a legislative change to allow for more evidence to be submitted.

Prime Minister Julia Gillard has announced the terms of reference of the Royal Commission into institutional child abuse, with plans for a legislative change to allow for more evidence to be submitted. Here are the details of the Commission.

Royal Commission Overview

Six commissioners will examine past and current child sexual abuse in institutions set up for care, supervision and training of children and adolescents, and related organisations. They will look at:
   * how these organisations have managed and responded to claims of sexual abuse and other associated forms of abuse and neglect
   * whether their response was proper and sufficient
   * what can be done to better protect children under their care
   * what should be done to identify child sexual abuse and encourage people to report it
   * how managers and boards of these organisations should respond when they find or receive information that suggests that sexual abuse of children has taken place within their institutions or when oversight has been their responsibility
   * barriers and failures to reporting, investigating and dealing with cases of child sexual abuse in any organisations
   * how these barriers can be removed
   * how surviving victims can be supported
   * how to ensure that both victims and perpetrators receive justice
   * Commissioners can look at any public or private organisation that is or has been involved with children
   * The Commission will hear from people affected by child sexual abuse
   * It will lso will look at archives, records and documents, submissions from public, non-government and private organisations, and laws, policies and practices of institutions, organisations and governments
   * The inquiry is to start as soon as possible
   * An interim report is required by June 30, 2014
   * The Royal Commission is set to end in 2015 but its term could be extended 

The Age, a Melbourne Newspaper, has produced a simple dot point Guide to the Royal Commission

Explaining the terms of reference

The terms of reference highlight several defining characteristics – most notably a multifaceted approach to child sex assault, a broad range of powers, and the commission’s independence in decision-making.

While the terms do not outline any operational characteristics of the royal commission, much is demonstrated by the range in experience of its six appointed commissioners. By appointing Justice Peter McClellan, NSW Supreme Court judge and former Assistant Commissioner to the NSW Independent Commission Against Corruption, as Chief Commissioner, the government emphasised its focus on addressing or correcting the factors that have allowed for systemic institutional malpractice.

The commission, it was announced, is not going to be prosecutorial; it will seek to “shine a light” on past abuses and acknowledge the suffering endured by survivors and victims alike. Whether or not this includes public hearings is yet to be decided; the operational peculiarities of the commission are to be decided by the commissioners, when they meet collectively. And by allowing the commission such discretionary powers over factors such as methods of gathering evidence and operational design, the government is distancing itself from the process.

This is not necessarily a bad thing. As outlined in the Terms of Reference, the word “institution” refers to both public and private bodies that have allowed for adults to come in contact with children. Also included in the definitions are past institutions which are either no longer in operation or in existence. Should it emerge through the commission’s investigations that abuse in public, or state-run, institutions was prevalent, distance between the government and the commission will be crucial to ensure its legitimacy.

This independence has, however, left many waiting for greater detail about the role of police. It was recommended in the terms of reference that an independent investigative unit be established. Comprised of police officers seconded from all Australian states and territories, it was suggested that this unit be proactive rather than reactive – seeking out hidden sex abuse, as opposed to waiting for allegations to be made.

News Conference by the Royal Commission

On Wednesday, 16 January, members of the Royal Commission into Child Sexual Abuse conducted their first news conference, emphasising the fact that the commission is not a prosecuting body. The Chair of the Royal Commission, Justice Peter McClellan AM, noted that there had been considerable media speculation about the wide-ranging powers of the Royal Commission, and its task, both in Australia and overseas. The full extent of the task is not yet known. Justice McClellan told the news conference:

The Royal Commission has been charged with examining the sexual abuse of children in the context of institutions throughout Australia. Having regard to what is already publicly known of these problems the task before the Commission is large. However, until the Commission has commenced its work and people come forward to give us an account of their personal circumstances we cannot gauge the full extent of that task.

Justice McClelland went to to share the Royal Commissioners concern about the need to ensure that evidence is presented in whatever appropriate manner is needful, and to allay any emotional concerns of witnesses and their needs for confidentiality, should that be requested by witnesses:

All of the Commissioners are aware of the sensitivity of the issues which the Commission must examine and the concern for individuals who may have been affected by their experiences. Many will be apprehensive about the public exposure of those experiences. For that reason the Commission will put in place procedures, including various means by which a person may give their account which will ensure that the interests of individuals are protected and at the same time ensure that the process is fair to other individuals and institutions. This may mean that proceedings will take place in private, real names may not be used and it may be necessary to place other constraints on the reporting of individual matters. However, where possible the Commission will proceed in public. Public knowledge of what may have occurred and an understanding of the institutional responses both in the past and those proposed in the future is a fundamental objective of the Commission.

Much speculation has been entertained in print, electronic, radio and public affairs media about confidentiality agreements which may have been entered into in the past. Discussion in the public domain has also scoped to production of evidence ispo facto. Justice McClelland told the news conference that the Royal Commission will not hesitate to use its powers to obtain evidence:

The Commission is aware that there has been considerable public discussion about the powers which the Commission has to enquire into matters which are the subject of confidential agreements. We wish to emphasise that under the Royal Commissions Act the Commission has powers to compel the production of evidence, including documents, and we will not hesitate in an appropriate case to exercise those powers. We will, of course be mindful of the potential sensitivity of some of those matters which may require the Commission to place constraints upon the further publication of any details which it obtains by this means.

However, the Commission expects that all institutions that may have entered into confidential agreements with individuals will cooperate with the Commission in relation to the disclosure of those matters.

The Royal Commissioners indicated that they are aware of significant emotional, social, developmental and personal impacts of child sexual abuse and indicated that they would be taking all care to ensure that victims of child sexual abuse and their needs with regard to appearing before the Royal Commission will be taken into account:

We are also conscious that our Terms of Reference will require us to make particular provision to ensure that children, young persons, persons living with disabilities and mental health problems, those who may be currently incarcerated, refugees and persons from culturally and linguistically diverse communities are all able to give an account of their experience to the Commission.

Interfaith Dialogue and the Rights of the Child

Religions for Peace Australia is providing this coverage of state and national inquiries into child sexual abuse with multi-faith and interfaith perspectives as a service to the interfaith community.

The Letters patent for the Royal Commission commence with the declaration, “WHEREAS all children deserve a safe and happy childhood“. The occasion of the Royal Commission brings to the fore the Rights of the Child, enshrined in United Nations Declarations, and in the teachings of all religions. How are these rights embodied in the teachings, practices and values inherent in every religious system?

The United Nations Convention on the Rights of the Child gives children (anyone under 18 years) a comprehensive set of rights. The idea that children have rights is still foreign to many adults. This is hardly surprising because many over 50 years old and migrants from some countries are likely to have grown up in an era when children were expected to ‘do as they were told’ and to ‘be seen and not heard’.

In Australian law and culture there are many who come from other legal systems; some (many) of which have similar problems. This should not be dodged, and the issue of religion vs culture be raised – that is the subjugation of women and children is often cultural and only incidentally religious. But the two get conflated. e.g. for Christians – ‘Spare the rod and spoil the child’ is Biblical.

This view of children as being under the control of their parents, carers and teachers was reflected in laws which can be traced back to Roman Law. The notion of patria potestas was custom during this period, where the Roman father’s words were literally the law. Thus the father had absolute legal control over the lives of his children. In schools, teachers were seen as acting in place of parents and they acquired parental powers of discipline and control over children.

However, during the post-World War Two era countries principally influenced by the Roman law and Christian teaching have progressed from viewing children as miniature adults; the poor laws, the child labour laws, the introduction of free education for children, the raising of the school-leaving age and the humane treatment of child refugees in World War II all illustrate evolution of children’s rights generally.

Furthermore the Roman law based approach differs significantly from the customary or cultural understanding and practices of many cultures, including those of many Arab and other Muslim countries, India, China, South East Asia and our nearest neighbour, Papua New Guinea, from which a growing proportion of Australia’s total community has come.

Fruitful grounds for interfaith dialogue might therefore include consultation to arrive at an understanding of the implicit rights of the child within religious scriptures and teachings of all religions which reflect universal human values.

The Australian Parliament and Compassion

We anticipate bi-partisan compassion and collaboration in this matter and that the Parliament will enact legislation to enable every voice to be heard. This will require Parliament to modify the Royal Commissions Act so that evidence may be given in a variety of ways, particularly for the voices of minorities, the disabled and illiterate to be heard and considered. The Australian Parliament will also empower Royal Commissioners to sit separately, as there will be challenges and tremendous demand on the Royal Commission to receive evidence. Like the National Sorry Day of a few years ago, participation in the Royal Commission will be the beginning of catharsis and healing for many silent sufferers.

Religions (any faith system) (and their appurtenances) in Australia which have engaged in care of children in any manner — thus having the responsibility of duty of care for children — would do well to have observers at the sittings of the Royal Commission, and to pay careful attention to the direction of the inquiries of the Commissioners. It will be bounden duty for all religions and institutions to pro-actively implement responses to the areas of duty-of-care and accountability wherever the Royal Commissioners hold their inquiries and examinations. No religion, no institution, may afford to sit back and say, “This does not affect us“. Religious adherents – and their organisations, are ostensibly followers and embodiments of a theistic code of morals. It is sine-qua-non that religions and their duty-of-care activities do the right thing and be seen to be doing the right thing.

Source: Prime Minister’s Media Office, Attorney General’s Department, Jwire, The Conversation Royal Commission News Room