What more needs to be done to improve access to justice for victims and survivors
Throughout October we have been 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 3, we looked at what has changed in the 5 years since the end of the Royal Commission. In this final week, we look at what more needs to be done to implement the Royal Commission’s recommendations and ensure that survivors can access the justice they deserve.
In the 5 years since the end of the Royal Commission, knowmore has monitored the implementation of the Royal Commission’s recommendations by all Australian governments. Through our work supporting survivors to access justice, we have also heard from survivors first-hand about what is working well, and what changes are still needed.
In this blog post, we share our thoughts about the key reforms that are needed to improve 3 pathways for survivors to access justice:
- Criminal justice
- Civil litigation
- The National Redress Scheme.
We also highlight the importance of ongoing monitoring, evaluation and accountability to ensure that the needs and expectations of survivors are being met.
Improving criminal justice responses to child sexual abuse
Australian governments have introduced many reforms in the 5 years since the end of the Royal Commission. However, we consider there are further steps that our governments can take in implementing the Royal Commission’s criminal justice recommendations nationally, which will improve survivors’ experiences of the criminal justice system. These include:
- Moving to harmonise criminal laws across Australia, by adopting greater consistency in the implementation of legislative reforms. This includes how laws are framed and the language used to describe sexual abuse. Some jurisdictions still rely on outdated and inappropriate language that is inconsistent with our current understanding of child sexual abuse.
- Providing more information about the implementation of recommendations that relate to policy, procedural and cultural changes — for example, recommendations relating to police interviewing techniques and training, prosecution guidelines and decisions, and training and education for judges and other members of the legal profession.
- Ensuring equal treatment for all survivors of child sexual abuse — for example, in some jurisdictions, special measures that have been introduced to help victims and survivors to give their best evidence do not extend to all adult survivors of child sexual abuse.
- Taking action on reforms to address the systemic barriers faced by certain groups of survivors, including Aboriginal and/or Torres Strait Islander survivors, survivors living with disability, and survivors from culturally and linguistically diverse backgrounds.
As we approach the 5th anniversary of the Royal Commission releasing its Final Report, knowmore asks all Australian governments to commit to:
- Finalising the implementation of the outstanding criminal justice recommendations of the Royal Commission as a matter of high priority.
- Adopting a nationally consistent approach to relevant criminal laws and procedure wherever possible. The recent Work Plan to Strengthen Criminal Justice Responses to Sexual Assault 2022-2027 is a welcome step to progressing this.
- Ongoing monitoring, evaluation and improvements to ensure criminal justice reforms effectively address the problems the Royal Commission identified and improve survivors’ experiences.
Improving the civil litigation system
The civil litigation system has been significantly improved because of the Royal Commission and the survivors who came forward to share their experiences and advocate for change. Nevertheless, we consider that there remains important work to do to improve the civil litigation system for all survivors. For example:
- Some states and territories still need to implement important supplementary reforms alongside the Royal Commission’s recommendations. These include laws to ensure that improvements to the civil litigation system apply to all survivors of child abuse (not just survivors of child sexual abuse), and laws to allow survivors to apply to a court to have past unfair settlement agreements with institutions set aside.
- Some states and territories still need to develop and publish model litigant guidelines for responding to child sexual abuse compensation claims. Even where these guidelines are in place, some governments continue to defend some claims in ways that are not trauma-informed and not in compliance with the spirit of such guidelines — as reflected in evidence before the Tasmanian Commission of Inquiry into child sexual abuse this year.
There are also some new and emerging problems with the civil litigation system that require urgent attention. These include survivors being targeted by private law firms and businesses that engage in ‘claim farming’, which can result in survivors being exploited, incurring unnecessary or excessive costs, and being unable to make informed decisions about exercising their justice-making options. This is particularly impacting certain groups of survivors, including Aboriginal and/or Torres Strait Islander survivors and survivors in prison.
Some survivors continue to face barriers in having their civil claims heard. This is particularly the case in relation to historical abuse claims, where some institutions have been able to persuade the court that it would be unfair to proceed with a trial given the passage of time and the unavailability of witnesses and evidence.
Even where they have been successful in a civil claim against a perpetrator, some survivors have been unable to recover any compensation. This may be due to perpetrators taking steps to spend or hide their financial assets, or because of the current laws that prevent survivors from accessing money held in perpetrators’ superannuation accounts.
knowmore asks all Australian governments to commit to:
- Finalising the implementation of the outstanding civil litigation recommendations of the Royal Commission and supplementary reforms as a matter of high priority.
- Introducing nationally consistent legislation to stop claim farming, using laws recently introduced in Queensland as a model.
- Ongoing monitoring, evaluation and improvements to ensure civil litigation reforms effectively address the problems the Royal Commission identified and improve fairness for survivors.
Improving the National Redress Scheme for survivors
Independent reviews into the National Redress Scheme (the NRS) — including the inquiry of the former Joint Select Committee on Implementation of the NRS and the Second Year Review of the NRS — have found that the NRS departs in many significant ways from the redress scheme envisaged by the Royal Commission. The Second Year Review concluded that an urgent reset of the NRS is required to ensure that it is survivor-focused and meets the needs of survivors.
These reviews have made important recommendations to improve the NRS, including recommendations to ensure that:
- More survivors are aware of the NRS and can access it
- More institutions are participating in the NRS or covered by Funder of Last Resort arrangements
- NRS processes and decisions are fairer and more transparent
- Survivors are able to receive the redress and support they need.
Even though the reviews have highlighted the need to make urgent changes, progress in implementing many recommendations has been slow, and survivors continue to be impacted by the delays in implementation. Some of knowmore’s clients have not been able to access redress because of these delays. This includes some clients who have been unable to apply for redress or who have put their applications on hold while they wait for recommendations to be implemented, and some clients who have continued with their applications only to receive outcomes that may be less than those they might have obtained had relevant recommendations been fully implemented.
In knowmore’s submission to the Second Year Review, we reflected on the role that the NRS can play in providing access to justice for survivors and fulfilling the promises made to them as part of the National Apology:
The NRS represents society’s opportunity to deliver on that apology by demonstrating to survivors that they are believed, that institutions will be held to account, and that the justice system will not fail them again. For many survivors, the NRS is the only opportunity they will have to obtain justice for the abuse they experienced as children, and is an essential step in their healing journey. However, unless and until the systemic problems with the NRS are addressed, there remains a serious risk that it will fail to deliver justice and redress for survivors.
knowmore therefore asks all Australian governments to commit to:
- Finalising responses to the final report of the Second Year Review and the second interim report of the former Joint Select Committee as a matter of high priority. These responses should provide survivors with certainty about which recommendations have been accepted and the timeframes for implementation.
- Implementing the outstanding recommendations from these reviews by the 5th anniversary of the NRS on 1 July 2023.
- Ongoing monitoring, evaluation and improvements to ensure the NRS meets the needs and expectations of survivors.
The need for ongoing transparency and accountability from governments
The Royal Commission recommended that all Australian governments and key institutions that engage in child-related work should report on their implementation of the Royal Commission’s recommendations for 5 years after the release of the Final Report.
15 December 2022 will mark 5 years since the end of the Royal Commission. It will also mark the end of the annual reporting obligations of governments. Despite this, many important recommendations to improve access to justice for survivors remain outstanding, as noted above.
knowmore therefore asks all Australian governments to commit to:
- Providing continued transparency and accountability regarding the implementation of the Royal Commission’s recommendations over the next 5 years.
- Engaging in meaningful consultation with survivors and their supporters to inform the implementation of outstanding recommendations.
Join us throughout November as we reflect on the Royal Commission’s recommendations to improve support and healing for survivors, what has changed in this area in the 5 years since the end of the Royal Commission, and what more needs to be done.