How access to justice for victims and survivors has changed
Throughout October we will be reflecting on how the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) has helped to improve access to justice for victims and survivors. In Week 2, we looked at knowmore’s role during the Royal Commission, as well as our ongoing work supporting survivors to access justice and how we have contributed to the implementation of the Royal Commission’s recommendations to improve justice systems. This week, we look at how justice systems across Australia have changed in the 5 years since the end of the Royal Commission.
In Week 1 of our reflections, we acknowledged the many victims and survivors who came forward to the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) who had been failed by our country’s justice systems. Those individuals shone a light on the significant barriers survivors face in seeking justice and how legal processes are often re-traumatising for them. We also discussed the reforms recommended by the Royal Commission to change our justice systems so that they are better able to respond to survivors and provide them with the justice they deserve.
15 December 2022 will mark the 5th anniversary since the end of the Royal Commission. In this time, considerable progress has been made across Australia to implement the Royal Commission’s recommendations which aim to improve access to justice for survivors and to create fairer and more effective justice systems.
While we acknowledge that much more remains to be done to improve justice systems and their responses to victims and survivors, it is important to reflect on how far we have come in the 5 years since the end of the Royal Commission.
In particular, we reflect on key changes made to 3 pathways for survivors to access justice:
- Criminal justice
- Civil litigation
The Royal Commission’s recommendations to improve the criminal justice system’s response to victims and survivors of child sexual abuse are important in supporting survivors to hold perpetrators to account for the crimes they committed against them, and to reducing the risk of survivors being re-traumatised by their interactions with police and the court system.
Since the end of the Royal Commission in 2017, a number of key recommendations have been implemented by state and territory governments.
Many states and territories have introduced:
- Legislative changes to strengthen offences relating to child sexual abuse, including strengthening existing offences relating to grooming and persistent child sexual abuse, and introducing new offences that make it a crime to fail to report or protect a child from institutional child sexual abuse.
- Legislative changes to ensure that perpetrators receive fair sentences for the crimes they committed, including reforms which prevent courts from considering their previous good character when determining their sentence, as well as reforms which require sentences to be set in accordance with contemporary standards rather than standards that existed at the time of the abuse.
- Reforms which support survivors to give their best evidence, including reforms to allow their evidence to be pre-recorded or given via audio-visual link rather than in a courtroom with the accused present, as well as the introduction of intermediary schemes which provide critical support to some victims and survivors, such as children and those with communication support needs.
- Legislative changes to reform laws relating to the admission of evidence about the alleged perpetrator’s history of offending, as well as to hold more joint trials.
The Royal Commission’s recommendations to improve the civil litigation system are critical to making civil litigation a more effective option for survivors to access justice, and in turn, hold to account the institutions and organisations that failed to protect them.
In the time since the Royal Commission released its Redress and Civil Litigation report, knowmore has observed significant progress across Australia to implement these important recommendations and improve the civil litigation system for survivors. While the Royal Commission’s recommendations focused on survivors of institutional child sexual abuse, in many states and territories the reforms that have been implemented benefit all victims and survivors of child abuse.
Some of the most significant changes that have been implemented include:
- The removal of limitation periods in all states and territories to allow anyone who experienced child sexual abuse to make a civil claim for compensation, regardless of the time that has passed since they experienced that abuse. In most states and territories, these reforms also apply to survivors of other forms of child abuse.
- Legislative changes in many states and territories which make it easier to commence a civil claim against certain unincorporated institutions, such as churches and sporting clubs, and to identify which institution is the proper defendant to the claim.
- Legislative changes in many states and territories which make all institutions liable for child sexual abuse unless they can prove that they took reasonable steps to prevent it.
- The publication of trauma-informed guidelines, called model litigant guidelines, by some governments and institutions that guide how they respond to claims made against them.
In addition to implementing the Royal Commission’s recommendations, many states and territories have also introduced further reforms to make the civil litigation system fairer and more effective for survivors. For example, in almost all states and territories, legislative reforms have been implemented to give courts the discretion to set aside past settlement agreements between survivors and institutions, where it is just and reasonable to do so. This is a vital reform for the many survivors who received unfair and unjust settlements from institutions in the past, when many barriers to accessing justice existed, and provides survivors with the opportunity to pursue fair and just compensation for the harm they have suffered.
A national redress scheme
The establishment of the National Redress Scheme for victims and survivors of institutional child sexual abuse on 1 July 2018 is one of the most significant achievements since the end of the Royal Commission. According to knowmore’s CEO Warren Strange, the National Redress Scheme:
is a key part of Australia’s ongoing and shared responsibility for a community-wide failure to protect children from institutional child sexual abuse and for the ongoing suffering experienced by survivors.
The Scheme provides an important alternative avenue for survivors to access justice and provides them with a tangible means to have the harm they suffered as children formally recognised. The Scheme also provides survivors with an opportunity to access counselling and other support to deal with the impacts of abuse on their lives, and to receive an apology from the responsible institutions.
From knowmore’s experience supporting victims and survivors to access justice, we know that the Scheme has provided redress to many survivors who would otherwise have no avenue for obtaining justice, or who, due to their own personal circumstances, chose not to pursue justice through the courts. For many of these survivors, their offer of redress has been truly life changing.
While we commend the progress that has been made to improve criminal justice and civil litigation systems for survivors, we acknowledge that key recommendations remain outstanding in some jurisdictions, and that there is a lack of national consistency in how some reforms have been implemented.
We also acknowledge that the National Redress Scheme has not met the expectations of all victims and survivors and departs in some significant ways from the Scheme that was envisaged by the Royal Commission. Despite independent reviews into the Scheme since 2018, important recommendations to improve the Scheme for survivors are yet to be implemented.